Energyen Corporation v HD Hyundai Heavy Industries Co Ltd & Anor

Neutral Citation Number: [2025] EWHC 1586 (Comm) Claim No: CL-2024-000563 IN THE HIGH COURT OF JUSTICE BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES KING’S BENCH DIVISION COMMERCIAL COURT IN THE MATTER OF THE ARBITRATION ACT 1969 IN THE MATTER OF AN ARBITRATION Royal Courts of Justice, Rolls Building Fetter Lane, London, EC4A 1NL Date: 26/06/2025 Before : MR JUSTICE FOXTON - - - - - - - - - - - - - - - - - - - - - Between : ENERGYEN CORPORATION - and - HD HYUNDAI HEAVY INDUSTRIES CO LTD - and - HD KOREA SHIPBUILDING & OFFSHORE ENGINEERING CO LTD Claimant/ Arbitral Respondent First Defendant Second Defendant - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Graham Dunning KC and Wei Jian Chan (instructed by Watson Farley & Williams LLP) for the Claimant Gemma Morgan (instructed by Preston Turnbull LLP) for the Defendant Hearing dates: 10 and 11 June 2025. Draft to the parties:17 June 2025. - - - - - - - - - - - - - - - - - - - - - Approved Judgment This judgment was handed down remotely at 14:00 on 26 June 2024 by circulation to the parties or their representatives by e-mail and by release to the National Archives. ............................. Mr Justice Foxton Approved Judgment Mr Justice Foxton : Energyen Corporation v HD Hyundai Heavy Industries Co Ltd 1. 2. This is the hearing of challenges under ss.67 and 68 of the Arbitration Act 1996 (“the 1996 Act”) in relation to the Final Award in ICC Case 26615/XZG (“the Award”). The Claimant (“Energyen”) is a Korean company whose core business is the production of power-generating equipment. Energyen entered into a Supply Contract dated 25 June 2014 (“the Supply Contract”) with a Korean company then called “Hyundai Heavy Industries Co Ltd” with Company Code 009540 and Corporate Registration No 181211-0000386. I will refer to this company as “the Original HHI Signatory”. The issues in summary 3. The ss.67 and 68 applications in this case arise from a corporate structuring of the Original HHI Signatory’s business in 2019, of disputed scope and effect, which led to certain aspects of that business being transferred to the First Defendant (“the HHI 2019 Company”). That transfer, and its potential implications, appear to have passed unmentioned during the course of the arbitration, but now form the basis of Energyen’s challenge that the tribunal lacked jurisdiction to make an award in favour of the HHI 2019 Company (as Energyen says it did), in circumstances in which it contends that: i) it was the Original HHI Signatory which was and remained party to the Supply Contract and the arbitration agreement; ii) it was the Original HHI Signatory which commenced the arbitral reference; iii) the steps which it is said are 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. 4. There was also a challenge at one stage that the Award was affected by a serious irregularity which had caused Energyen substantial injustice, namely fraud for the purposes of s.68(2)(g) of the 1996 Act on the basis that: i) ii) the Tribunal was misled into accepting a change in the name of the claimant party on the basis of a false representation; and the Tribunal’s assessment of the reliability and independence of a technical simulation performed by a division of the Original HHI Signatory was conducted on the basis of a misleading impression that the simulation was done by a division of the arbitral claimant’s parent company, when it was in fact done by a division of the arbitral claimant itself. 5. For the purposes of s.68(2)(g), “it is not enough to show that a party inadvertently misled another, however carelessly”, and the usual requirements for alleging and establishing fraud apply (Mustill & Boyd: International Commercial and Investor State Arbitration (3rd) [14.90-14.91] (“Mustill & Boyd”). Having reviewed the matter at the end of the evidence, Mr Dunning KC did not pursue the allegation that the arbitral claimant or those presenting its case had acted fraudulently for s.68(2)(g) purposes, but maintained that the tribunal and his clients had undoubtedly been misled. Mr Justice Foxton Approved Judgment Energyen Corporation v HD Hyundai Heavy Industries Co Ltd 6. The case was extremely well argued by both Mr Dunning KC and Ms Morgan, and I am very grateful to them for the high quality of their submissions, which made very efficient and effective use of a tight two day time estimate. The facts The Supply Contract 7. 8. 9. The Supply Contract between Energyen and the Original HHI Signatory was for the supply of Feed Water Heaters (“FWHs”) for a thermal power plant in Saudi Arabia to be operated by the Saudi Electricity Company (“SEC”). According to the Award, the last FWH which was the subject of the Supply Contract was delivered FOB Kunsan Port in November 2015. The Supply Contract was subject to an agreement to arbitrate disputes by ICC arbitration in London. Both the Supply Contract and the ancillary arbitration agreement are governed by English law. The Supply Contract involved the shipment of a number of FWHs and associated services. It provided for the delivery of FWHs in various sets between 28 February 2015 and 30 October 2015. There was a warranty period of the shorter of 48 months from final delivery and 12 months from Preliminary Acceptance Date (which occurred in March 2018). However, clause 9.2.3 provided: “VENDOR shall continue to be responsible for the remedy of any latent defects found after expiry of the Warranty Period as if such defects were found during the Warranty Period. Latent defect shall mean existing defects not found at the time of delivery or within the Warranty Period because neither BUYER nor COMPANY could reasonably perform Inspections during such periods, because such defects were hidden and not readily discernible by routine inspection, or any other reason whatsoever”. 10. By clause 9.3.1, Energyen promised to cure any defects and make good any damage caused by the defects within the timeframe specified by the Original HHI Signatory. If Energyen failed to “timely fulfil” its obligations, the Original HHI Signatory was entitled to get a third party to carry out the repair, and to a full indemnity for all costs. 11. In early 2015, there was an internal re-organisation within the Original HHI Signatory. A memorandum sent in January 2015 to all executive officers and departments described the effect of the organisational and personnel restructuring. Whereas before there had been an “Offshore Division” and a separate “Plant Division”, there was now to be a single “Offshore Plant Division”. Contemporary press reports referred to the Original HHI Signatory integrating its plant division into the offshore division, with the “integrated offshore plant division” to be operated by joint CEOs. The tone of the coverage suggests that the offshore division was very much the larger partner, and the contract with the SEC was one of the “Plant Division” contracts. 12. Another internal memorandum, taking effect from January 2019, discussed the “enactment of an official English name according to the organisational integration of the Offshore Plant business department”, which I find to be a reference to the integrated department created in January 2015. While the document is not entirely easy to understand, it is consistent with the single merged “Offshore Plant” business unit Mr Justice Foxton Approved Judgment Energyen Corporation v HD Hyundai Heavy Industries Co Ltd created in January 2015 continuing in existence. It offered a variety of potential English names for the integrated unit. 13. On 21 February 2019, the HHI Original Signatory placed a further purchase order connected with the subject-matter of the Supply Contract with Energyen, but involving additional services at an additional price. The purchase order provided that “the other terms and conditions other than above shall be as per” the Supply Contract. The Spin-Off plan 14. On 11 April 2019, Mr Kim Yong Gyun, a senior manager at the Original HHI Signatory, sent an email to Mr Hoe-Seok Jeong, a Senior Sales Manager at Energyen. i) The email stated: “As you may have heard from the newspapers/news, we plan to spin off the company on June 3, 2019 and establish a new ‘Hyundai Heavy Industries Co Ltd’ …. We are sending you a notice of succession of contractual status following the spin-off so please refer to the attached notice and confirm receipt by providing your electronic signature on HiPro”. HiPro is a document portal used by the HHI group for communication with its suppliers. Each supplier is given an accredited certificate of authentication to enable it to access HiPro. ii) The email forwarded an email from Mr Lee Sang-Geun, a manager in the Integrated Purchasing Division Marine Plant Purchasing Team headed “Hyundai Heavy Industries Spin-off Notice / HiPro / Electronic Signature Request” addressed to “Representative Director of Partner Company”. This provided: “1. We wish your company prosperity. 2. We plan to spin-off and establish a new “Hyundai Heavy Industries Co., Ltd.” on June 3, 2019. 3. In this regard, we are sending you a notice of succession of contractual status following the spin-off as set forth in the attachment hereto, so please refer to the attachment and confirm your receipt by providing your electronic signature. * * Electronic signature path: Company information management - electronic registration / submission documents Attachment: Notice of Succession of Contractual Status Following the Spin-off of the Company.” iii) The email attached a document entitled “Notice of Succession of Rights and Obligations Pursuant to Spin-Off” (“the April 2019 Notice”) which stated: Mr Justice Foxton Approved Judgment Energyen Corporation v HD Hyundai Heavy Industries Co Ltd “We are writing to notify you that Hyundai Heavy Industries Co., Ltd. (the “Company” or “we”) plans to vertically spin-off (the “Spin-off”) practically all of our operational businesses (including shipbuilding, special vessels, offshore & engineering and industrial plant, and engine machinery businesses (collectively, the “Spin-off Business”)) to a new wholly-owned subsidiary, which will engage in the same line of businesses with the same employees, know-how, technique and facilities. We plan to name this subsidiary Hyundai Heavy Industries Co., Ltd. (“NewCo”). Upon completion of the Spin-off, we will function as an intermediary holding company of the subsidiaries engaged in the shipbuilding, special vessels, offshore & engineering and industrial plant, and engine machinery businesses within the Hyundai Heavy Group. We plan to rename ourselves, tentatively, Korea Shipbuilding & Marine Engineering Co., Ltd. (“SurvivingCo”). The plan for the Spin-off (the “Spin-off Plan”) was duly approved by our board on March 8, 2019. The tentative timeline of the Spin-off is as follows: - March 8, 2019: Board of Directors approved the Spin-off Plan - May 31, 2019: General meeting of shareholders to approve the Spin-off Plan - June 3, 2019: Court registration of the Spin-off (the “Effective Date”) Please be advised that, pursuant to the Spin-off, all of our existing rights and obligations under all of your contract(s)(together with any extensions, renewals, amendments, modifications and ancillary agreements thereto, collectively, the “Contracts”) with us, will, as of the Effective Date, be comprehensively transferred to and assumed by NewCo by operation of Korean law, and that the personnel in charge of the matters related to the Contracts will not change after the Spin-off. Following the Spin-off, pursuant to the Korean Commercial Code and the Spin-off Plan, SurvivingCo and NewCo will remain jointly and severally liable for all of our existing obligations under all Contracts entered into with you prior to the Spin-off. As such, the Spin-off will not result in any change or cause any issues in relation to NewCo’s performance of such obligations under the Contracts.” iv) It is not entirely clear to me whether the April 2019 Notice originally provided for Mr Park to sign the document as the representative director of Energyen, or whether Mr Park’s name as the signatory as well as his electronic signature were applied at the Energyen end. While Mr Park suggests the former, I cannot see how on his own evidence he would have seen the April 2019 Notice in its pre- electronically signed form. Whichever was the case, an acknowledgement of the notice was signed on HiPro using Mr Park’s electronic signature. v) Mr Park’s evidence is that the signature was affixed by the Senior Sales Manager, Mr Jeong who he described as part of middle management. Mr Park’s evidence is that he would not have expected the April 2019 Notice to have been reported to him because it was not significant, and that Mr Jeong’s superior Mr Kang had later advised Mr Park (after the present disputed emerged) that Mr Jeong had not told him about this either. In oral evidence, Mr Park said he had spoken to Mr Jeong (who no longer worked for the company) who also said he had not told Mr Park about this. Neither Mr Kang nor Mr Jeong provided statements. Mr Justice Foxton Approved Judgment Energyen Corporation v HD Hyundai Heavy Industries Co Ltd 15. There is a dispute as to what is necessary to give Energyen as a corporation knowledge for the purposes of s.73(1) of the 1996 Act, with Energyen suggesting that it requires knowledge by individuals comprising the directing mind and will of the company, or at least who comprise that directing mind for the purposes of the arbitration. I will return to issues of attribution in that specific statutory context below. For the present, I should record that I am satisfied that the communication was effective to bring the fact of the impending Spin-Off to Energyen’s notice for the purposes of the administration of the Supply Contract: i) ii) The giving of the April 2019 Notice and the acknowledgement of receipt did not bind Energyen to a new contract. It was common ground between the Korean law experts that the Spin-Off plan, once adopted was automatically binding on Energyen, regardless of notice or consent. The Supply Contract contained an outstanding latent defect warranty, and, in any event, a few months before there had been a further purchase order for the provision of additional services in relation to the same project on the same terms as the Supply Contract. The notice was, therefore, of a matter of potential significance to Energyen. iii) Mr Lee Sang-Geun’s email was addressed to “Representative Partner Director of Partner Company” and provided for a signature by “a representative director” (and indeed on Mr Park’s evidence, by him personally). That should have caused it to be treated as a communication of some significance. iv) The email specifically sought an electronic signature on the HiPro system to confirm receipt of the notice. Mr Jeong did not ignore the email, but acknowledged receipt, and did so using Mr Park’s signature block. The use of Mr Park’s signature block signing as a “representative director” once again objectively suggested that the document was intended to be, and was treated as being, of some significance. v) While Mr Park says he does not believe he was asked about the April 2019 Notice at the time, he confirmed that had the matter been raised with him, he would not have regarded it as of any great import. vi) At this distance of time, I am not persuaded that Mr Park has any present recollection of an event which it appears he would not have regarded as important at the time, nor do I feel able to rely on his hearsay as to what Mr Kang and Mr Yeong may have said so long after the event, and after the dispute had arisen. vii) In any event, whether or not Mr Jeong spoke to Mr Park, I am satisfied that Mr Jeong’s knowledge is attributable to Energyen for the purpose of fixing it with the knowledge of the Spin-Off for the purposes of the administration of the Supply Contract. Mr Jeong had been entrusted with the Energyen authorisation details for accessing HiPro. It has not been suggested that in taking the steps that he did, Mr Jeong exceeded his authority, nor that Mr Jeong acted inappropriately in acknowledging receipt in Mr Park’s name. In these circumstances, there is no reason to conclude that in acknowledging receipt of the April 2019 Notice in Mr Park’s name, Mr Jeong was acting outside of his authority. Mr Justice Foxton Approved Judgment Energyen Corporation v HD Hyundai Heavy Industries Co Ltd viii) It is also relevant to note the objective effect of Energyen’s conduct. Mr Park’s evidence suggests that the April 2019 Notice was loaded onto the HiPro system on three occasions in April 2019, with the email to Mr Jeong being in the nature of a prompt. What came back from the Energyen side was an acknowledgement signed with the electronic signature of a representative director. The objective appearance was that receipt of the April 2019 Notice had been acknowledged at director level. 16. On 2 May 2019, a corporate reconstruction plan for the Original HHI Signatory’s business, referred to as the “Spin Off Plan”, was issued. This defined the Original HHI Signatory as the “Company” and after the spin-off as “the Surviving Company”. The opening paragraph (with the words in square brackets reflecting a dispute as to the correct translation) provides: “The ‘Company’ shall, by way of a simple vertical spin-off in accordance with Articles 530-2 through 530-12 of the Korean Commercial Code, spin off the Spun-off Business [Units/Areas] (as defined below) from the businesses it engages in and establish Hyundai Heavy Industries Co., Ltd. (tentatively named) (the ‘New Company’), and the Company shall survive such spin-off and change its trade name to Korea Shipbuilding & Offshore Engineering Co., Ltd. (tentatively named) (such surviving entity, the ‘Surviving Company’.” 17. The following paragraphs provided: i) At paragraph 1(1), “the Company shall, by way of a simple vertical spin-off (the ‘Spin-Off’), spin off the shipbuilding, special vessels, offshore plant and engines and machinery business [units/areas] (‘the Spun-Off Business [Units/Areas]’) which shall not include the investment business [unit/area], from its existing businesses and establish the New Company. The Surviving Company shall, by converting into a holding company within the meaning of the Fair Trade Act, establish corporate governance for long-term growth.” ii) At paragraph 1(2), that “after the Spin-off, the Surviving Company shall focus on the management of its subsidiaries, investment in new businesses, etc. while the New Company shall focus on the Spun-off Business [Units/Areas] …” iii) At paragraph 1(3), that “the Surviving Company is expected to serve as a control tower for its shipbuilding subsidiaries including the New Company and, by combining R&D and engineering functions, also operate as a technology-focused company.” iv) At paragraph 2(1), that the Surviving Company’s “Business [Unit/Area]” was “investment business unit aimed at management and investment of equity interest in subsidiaries and investee companies, new technology and basic research business [unit/area], etc” with a role of “holding company” and for the New Company, “shipbuilding, special ships, offshore plant, engine & machinery business [units/areas]” with the role of “operating company”. v) Paragraph 2(5) provided for the transfer of property and public law rights and obligations, and that certain rights and obligations “be attributed to the New Company if related to the Spun-off Business [Units/Areas], and be attributed to Mr Justice Foxton Approved Judgment Energyen Corporation v HD Hyundai Heavy Industries Co Ltd the Surviving Company if related to the [units/areas] other than the Spun-off Business [Units/Areas].” It continued: “the New Company shall succeed to labor and legal relationships (labor contract, etc.) of all employees who work at the Spun-off Business [Units/Areas] as of the date of the Spin-off.” vi) Paragraph 2(6) provided for the attribution of liabilities depending on whether the liabilities are “mainly related to the Spun-off Business [Units/Areas]”. vii) Paragraph 2(8) provided for the “allocation of claims or other rights”, to which paragraph 6 was to apply. viii) Paragraph 2(9) provided that “any contract to which the Company is a party prior to the date of the Spin-off shall be, if it relates to the Spun-off Business [Units/Areas]” attributed to the New Company. ix) x) Paragraph 5(12) provided that “the New Company shall succeed to employment and related legal relationships (labor contract etc) of all employees who, as of the date of the Spin-off, work at the Spun-off Business [Units/Areas]”. Paragraph 6(1) provides for the position where, before the date of the Spin-Off, “there is any change in the assets and liabilities (or contractual relationship) of the Spun-off Business Units due to business or financial changes in the Spun-off Business Units.” 18. On 31 May 2019, a general meeting of shareholders in the Original HHI Signatory was held for the purposes of approving the Spin-Off Plan. 19. On 3 June 2019: i) ii) iii) the Spin-Off was registered; the Original HHI Signatory was renamed “Korea Shipbuilding & Offshore Engineering Ltd” (but I will continue to refer to it as the Original HHI Signatory); and a new company was incorporated (which I have been referring to as the HHI 2019 Company), called “Hyundai Heavy Industries Co Ltd” (i.e. the former name of the Original HHI Signatory) with company code 329180 and corporate registration number 230111-0312741. 20. The Spin-Off plan was publicly available, via the Depository of Korea’s Corporate Filings system, DART. The effect of the Spin-Off plan as a matter of Korean law Should I decide this issue? 21. Mr Dunning KC submitted that I need not and should not decide the effect of the Spin- Off plan, but should leave this to the arbitrators in any future arbitration. However, I accept Ms Morgan’s submission that understanding the effect of the Spin-Off is an issue which arises as part of the s.67 challenge, and one, therefore, which the court has jurisdiction to determine de novo: Mr Justice Foxton Approved Judgment Energyen Corporation v HD Hyundai Heavy Industries Co Ltd i) It provides important context to the issues which arise as to who commenced the arbitration, and to how the RFA was to be understood by a reasonable reader in the position of Energyen. I note that in decisions such as Internaut Shipping GmbH v Fercometal SARL [2003] EWCA Civ 812, SEB Trygg Holding AB v Manches [2005] EWHC 35 (Comm), [2005] EWCA Civ 1237 and Eurosteel Ltd v Stinnes AG[2000] CLC 470, in which the court has faced similar issues to those which arise in this case, the court has itself sought to identify the parties to the arbitration agreement for the purposes of resolving disputes as to whether an arbitration had been validly commenced and/or continued, and who the parties to the reference are. ii) Energyen has itself squarely raised this issue as one of its jurisdictional challenges (paragraphs 9 and 10 of the Re-Amended Claim Form, being the first jurisdictional points taken) and it is a jurisdictional issue which directly arises if I conclude that the HHI 2019 Company is the arbitral claimant. iii) The jurisdictional challenge based on the effect of the Spin-Off plan was the primary basis of Energyen’s challenge at all times until the service of Mr Dunning KC’s skeleton argument. 22. In any event, I should state that the effect of the Spin-Off plan so far as the Supply Contract is concerned seems obvious. The rival cases 23. Energyen’s case is as follows: i) ii) The Korean phrase in dispute – 사 사 사 사 (sah-up-booh-moon) – is correctly translated as “business areas” and not “business units”. It is said that “sah-up- booh-moon” is a conceptual term describing a type of business activity, and not an internal structure or organisational element of a business. The business area transferred was the “offshore plant business area”, which was limited to “shipbuilding, special ships, offshore plant, engine & machinery business [areas]” and did not include the Supply Contract, which did not fall within that business area (being a contract for the supply of an onshore power plant). iii) Applying the Korean law principles for the construction of the Spin-Off plan, where the wording is clear, it is not permissible to have regard to other interpretative aids. 24. The Defendants’ case is as follows: i) ii) The phrase “sah-up-booh-moon” is correctly translated in the context of the Spin- Off Plan as “business division”, in the sense of a functional area of a business activity and an operational unit within a company. The business unit transferred was the “offshore plant business area”, namely the unit formed in January 2015 by the merger of the offshore and plant units, and thus the contracts transferred included the Supply Contract. Mr Justice Foxton Approved Judgment Energyen Corporation v HD Hyundai Heavy Industries Co Ltd iii) Applying the Korean law principles for the construction of the Spin-Off Plan, the wording is clearly to the effect the Defendants’ contend for, but if not, it is ambiguous, and it is permissible to have regard to other interpretative aids which support the Defendants’ position. The translation issue 25. 26. 27. 28. I heard expert evidence on the correct translation of “sah-up-booh-moon” from Professor Yeon who is currently Professor Emeritus of Korean Language and Linguistics at SOAS (called by Energyen) and Professor Kiaer, currently YMB—KF Professor of Korean Linguistics at the University of Oxford (called by the Defendants). Both were extremely highly qualified experts on Korean linguistics, and I mean no disrespect to either expert when I observe that I doubt that quite so much academic firepower was necessary to resolve this very narrow issue. Professor Yeon refers to dictionary definitions of “booh-moon” as “area”, “field” or “sector”, which is classified according to certain standards or sectors. That opinion was supported by views as to how business areas within a company might involve different departments and teams, such that “the context endorses the literal meaning of the terms used”. Professor Yeon’s acceptance that context is relevant in this enquiry is significant. Professor Kiaer translates “bu-mun” (adopting the Revised Romanisation of Korean system) as “sector, division or branch within a broader domain”, which she states are “routinely used to denote functional domains rather than juridical entities”. She expresses the opinion that the compound term “sa-eop bu-mun” is “most accurately understood as referring to a functionally defined division or area of operations within a business, the precise nuance depending on the surrounding context”. Professor Kiaer too emphasises the importance of context: “While the lexical meaning of 사사사사 (sa-eop bu-mun, 사사사사) may be rendered as “business division” or “business area,” its interpretation must also be approached from a pragmatic and contextual linguistic perspective. In particular, its function and nuance should be considered within the discursive environment of corporate restructuring and the statutory language of the Spin-Off Plan. Such an approach recognises that broader meaning may emerge not only from dictionary definitions but through the situated use of terminology in legal and institutional documents.” I am satisfied, on the basis of the opinion of both experts, that the disputed phrase can extend both to a conceptual divide, and to a specific division or branch of the operations of a business which perform particular activities, with the precise meaning depending on context. I accept Professor Kiaer’s evidence (which was broadly accepted by Professor Yeon) that the use of words in the Korean language is very dynamic, and that the phrase in issue here is capable of a broad range of meanings dependent on context. I am satisfied that the better interpretation of the phrase used in the Spin-Off plan is to embrace the business or activities of the offshore plant business unit, rather than specific types of business activity regardless of which internal unit undertakes them: Mr Justice Foxton Approved Judgment Energyen Corporation v HD Hyundai Heavy Industries Co Ltd i) ii) It is clear that there were relevant internal units within the Original HHI Signatory’s business, including the offshore plant business formed by the merger of business units in January 2015. It seems inherently improbable that an “onshore”/”offshore” conceptual divide would be adopted to identify which assets and liabilities were being assumed by the 2019 HHI Company, and which retained by the Original HHI Signatory. What, for example, of work done on floating docks attached to ports, or SPM mooring systems? By contrast, a delineation by reference to the existing organisational divide of the Original HHI Signatory’s business avoids this difficulty. iii) The alternative interpretation would appear to involve issues relating to onshore contracts being left with the Original HHI Signatory. However, this would conflict with the role of the HHI 2019 Company envisaged in the Spin-Off Plan (the Original HHI Signatory being a “holding company” which was “an” investment business unit aimed at management and investment of equity interest in subsidiaries and investee companies, new technology and basic research business [unit/area], etc”). The transfer of the onshore plant business to the HHI 2019 Company seems inherently more logical because that involves the transfer of an operational activity (rights relating to the supply of equipment) to the “operational company”. It would be a surprising interpretation of the Spin-Off plan if it had the effect (per paragraph 1(1)) of spinning-off “the shipbuilding, special vessels, offshore plant and engines and machinery business areas”, but left onshore plant with the holding company. iv) Under the Spin-Off plan, the only business units/areas identified as remaining with the Original HHI Signatory Company were “the investment business [unit/area] aimed at management and investment of equity interest in subsidiaries and investee companies, new technology and basic research business [unit/area]”. Rights and responsibilities in relation to onshore projects do not fall within those units/areas. v) The Spin-Off plan provided for the HHI 2019 Company “to succeed to labor and legal relationships (labor contract, etc.) of all employees who work at the Spun- off Business [Units/Areas] as of the date of the Spin-off.” That provides strong support for the suggestion that the “Spun-Off Business [Units/Areas]” is referring to an internal organisational divide, rather than types of project (it being perfectly conceivable, and indeed likely in the existing organisational structure from January 2015, that there were individuals with responsibilities for both the offshore and onshore plant business, which formed part of a single internal business division). 29. Finally, it is notable in this case that the two firms of independent translators who originally produced translations of the phrase “sah-up-booh-moon” translated that phrase as “business units”. Further, the point now made about “business areas” does not feature in the first expert memorandum or second expert report from Mr Lee, Energyen’s Korean law expert, which might suggest that the meaning now contended for by Energyen does not, in the context in which the phrase appears, leap off the page. The position as a matter of Korean law Mr Justice Foxton Approved Judgment Energyen Corporation v HD Hyundai Heavy Industries Co Ltd 30. I heard expert evidence on Korean law from Mr Heon Seop Lee of ACE Law firm for Energyen and Mr Junghoo Yoo of EJE law (and formerly of Kim & Chang) for the Defendants. There was little disagreement between the experts on the applicable legal principles (which represent the admissible limits of their evidence although not, alas, the limit of the issues on which the experts had been asked to opine). However, I formed the clear impression that Mr Yoo had rather greater experience of this area of Korean law and legal practice than Mr Lee. 31. “Spin-offs” take effect by reason of the Commercial Act of Korea. Article 530-2 (Division and Merger after Division of Company) provides: “(1) A company may be divided to form one or more new companies. (2) A company may merge with one or more existing companies after its division (hereinafter referred to as ‘merger after division’). (3) A company may be divided to form one or more new companies, which, in succession, may merge with other existing companies.” 32. Article 530-10 (Consequential Effect of Division or Merger after Division) provides: “A newly established company by simple division, succeeding company after division or newly established company by merger after division shall succeed to the rights and obligations of the spin-off company, as prescribed by the spin-off plan or an agreement for the merger after division.” 33. I was referred to the decision of the Supreme Court of the Republic of Korea dated 28 August 2014. This holds that the issue of what has been “spun off” by a spin-off plan turns on the objective interpretation of the spin-off plan, but if this does not clearly reveal the objective meaning: “the principle of division and the contents of the right to be succeeded, the existence of the divided company, the rational intention of the divided company that prepared the division plan and the shareholders who approved it, the circumstances of the division, the purpose and true intention to be achieved by the division, the practice of transactions, etc. should be comprehensively considered to be reasonably interpreted in accordance with the laws of logic and experience, common sense of society, and conventional wisdom of transactions.” 34. I have concluded that the objective interpretation of the Spin-Off plan is clear, and that the business, assets, rights, liabilities and contracts of the Offshore Plant division as formed in January 2015 were spun off, including the Supply Contract. However, if I had concluded that the objective meaning of the Spin-Off Plan was unclear, I am satisfied that it was intended to achieve this effect, Those who prepared of the Spin-Off plan clearly intended to effect such a transfer (as is apparent from the April 2019 Notice sent to all contractual partners and the way in which the HHI 2019 Company has operated since its formation) and that is the obviously rational intention of the Spin-Off plan, when regard is had to the intended different roles of the holding company and operating company and the transfer of labour. 35. There are two further aspects of the effect of the Spin-Off plan under Korean law which are to be noted: Mr Justice Foxton Approved Judgment Energyen Corporation v HD Hyundai Heavy Industries Co Ltd i) First, the statutory provisions under consideration embrace both cases where the original company continues in some form, and where it does not. In the present case (in which the HHI Original Signatory continued): a) Mr Lee stated that “the new company may be described as having a status identical or equivalent to the former company”. b) Mr Yoo stated that the spun-off company “may be regarded as having a status identical or equivalent to the former company under the contract.” ii) Second, I find, that 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, not simply contracts to the extent that they remained unperformed (there being no language in the Spin-Off plan supporting a distinction of this kind). It was common ground that it was possible for a Spin- Off plan to transfer wholly performed contract, but in any event, the Supply Contract was not wholly performed, containing continuing repair obligations for latent defects. If the question had been asked, therefore, in July 2019 and thereafter, who the parties to the Supply Contract were, the answer is Energyen and the HHI 2019 Company. The effect of the Spin-Off plan as a matter of English law 36. 37. It was common ground that the effect of a corporate succession of a company incorporated in a foreign jurisdiction on an English law contract to which the pre- succession entity was a party is determined by the law of the company’s domicile (Dicey, Morris & Collins (16th), [30-030]). In reported cases (including all those cited in the relevant footnote of Dicey) that principle has been applied in the context of universal succession. The effect of “partial succession”, where the original entity remains in being, does not appear to have been addressed in English case law – certainly, none that I was referred to. I can see no reason in principle why the same approach should not be adopted where the effect of a statute in the law of a company’s domicile is that a new company formed as part of the relevant act of restructuring succeeds to only part of the “estate” of its predecessor. As I have noted, the same Korean legislation here covers both possibilities, and it is clear that other legal systems recognise “spin offs” both where the original company survives and where it does not (see for example s.123 of the German Transformation Act of 28 October 1994 (Federal Law Gazette I p. 3210; 1995 I p. 428)). In this case, the description of both experts as to the effect of partial succession under the Korean Commercial Act is to involve, in effect, the continuation of that part of the predecessor’s identity which pertains to the transferred business units. The “partial succession” by operation of statute in this case has much more in common with a universal succession, than where specific rights or liabilities are transferred from one existing entity to another, through the consent of both and/or any obligor. I accept that there may be cases where the continued existence of the original entity is of significance under English law (see, for example, Central Latino Americano de Commercio Exterior SA v Owners of the Kommunar (The Kommunar (No 2) [1997] 1 Lloyd’s Rep 8,and s.21(4) of the-then Supreme Court Act 1981). I am not persuaded that this is one of them. Mr Justice Foxton Approved Judgment Energyen Corporation v HD Hyundai Heavy Industries Co Ltd 38. I can see no reason why a partial succession of the kind under consideration here should be treated differently from a universal succession for conflicts of law purposes, and, in any event, it was not clear to me what alternative conflict rule might be applied. To treat reconstructions under statutes of this kind, which will generally involve succession to a whole host of property rights, assets and liabilities and employment relationships, as akin to assignments for the purposes of conflicts analysis seems fundamentally inconsistent with the non-consensual nature of the legal mechanisms in play. 39. Ms Morgan also relied upon a number of statements in English cases that the effect of universal succession is that the successor company “continues the personality of another” (Metliss v National Bank of Greece [1957] 2 QB 33, 51) and that “the successor is treated as the same person to whom he succeeds” (Eurosteel Ltd v Stinnes AG [2000] 1All ER (Comm), 964, 969). I accept that some caution is required in applying those expressions in the content of a partial succession, but I accept that they remain broadly correct within the scope of the partial transfer, and that is essentially how Mr Lee and Mr Yoo explained the position under Korean law (see [35]). The dispute emerges and is referred to arbitration 40. In late December 2020/early January 2021, issues emerged concerning alleged cracks in certain of the FWHs supplied by Energyen under the Supply Contract, and were raised with Energyen. The emails raising those issues came from various addresses, both those associated with the domain “hhi.co.kr” and those associated with “ksoe.co.kr”. 41. On 26 October 2021, a Request for Arbitration (“RFA”) against Energyen in relation to the alleged defects in the FWHs was filed with the ICC. This named the arbitral claimant as “Hyundai Heavy Industries Co Ltd” (i.e. at that point the name of the HHI 2019 Company) described as follows: “HHI is a public company organized and existing under the laws of the Republic of Korea. Established in 1972, HHI is the world’s leading heavy industries company which provides diverse services in shipbuilding, offshore and industrial plant engineering, and engine production.” 42. Paragraph 7 of the RFA refers to the arbitral claimant as the original signatory of the Supply Contract. 43. The RFA also refers to post-June 2019 correspondence from the HHI side to Energyen. It alleged breaches of the Supply Agreement in relation to the original supply of the FWHs before June 2019, and a failure to perform contractual rectification obligations when called upon to do so after June 2019. 44. Between 17 February and 9 March 2022, the Terms of Reference (“ToR”) for the ICC arbitration were agreed by the parties to the arbitral reference and the tribunal. Reflecting the terms of the RFA, this referred to the arbitral clamant as the entity which had entered into the Supply Contract. 45. On 22 August 2022, the arbitral claimant filed its Statement of Claim (“SoC”). Paragraph 5 pleaded that the allegedly defective FWHs were supplied by Energyen to the arbitral claimant, and that the Supply Contract was entered into by Energyen and the arbitral claimant. Once again, this described the arbitral claimant as having been Mr Justice Foxton Approved Judgment Energyen Corporation v HD Hyundai Heavy Industries Co Ltd established in 1972. It advanced the same two broad allegations as the RFA, and again referred to pre- and post-June 2019 correspondence from the HHI side on the basis that it all came from the arbitral claimant. 46. On 28 March 2023: i) ii) the HHI 2019 Company changed its name to “HD Hyundai Heavy Industries Co Ltd”; and the HHI Original Signatory changed its name to “HD Korea Shipbuilding & Offshore Engineering Co Ltd.” 47. On 4 April 2023, the arbitral claimant’s counsel emailed Energyen and the tribunal as follows: “The Claimant hereby informs the Tribunal and counsel for the Respondent that pursuant to a resolution of the board of directors on 28 March 2023, the Claimant, Hyundai Heavy Industries Co., Ltd has changed its registered name to “HD Hyundai Heavy Industries Co., Ltd.” effective from 28 March 2023. For website at the Claimant’s reference, http://enqlish.hhi.co.kr/about/qlance. which reflects the abovementioned change in name. Moving forward, the Claimant will be grateful to have its updated registered name reflected on all intitulements and correspondences in this arbitration.” please official see 48. This notified a change in name, not a change in the identity of the legal person pursuing the claim. The link to the webpage did not add any further information. 49. On 19 April 2023, the ICC Secretariat advised the parties and the tribunal that the reference had been updated to reflect the change in the arbitral claimant’s name to “HD Hyundai Heavy Industries Co Ltd.” 50. On 3 November 2023, a List of Abbreviations was prepared for use in the arbitration (it is not clear by whom). This described the arbitral claimant as “HD Hyundai Heavy Industries Co Ltd (HHI)” and also referred to the arbitral claimant’s parent company: “HD Korea Shipbuilding & Offshore Engineering Advanced Research Center (KSOE): An investee company of HD Hyundai (formerly Hyundai Heavy Industries Group) and is the parent company of HHI”. 51. The evidentiary hearing took place between 4 and 9 December 2023 at the IDRC. The record was closed on 28 August 2024. One of the complaints about the FWHs made in the arbitration was that the post-weld heat treatment adopted by Energyen was insufficiently uniform, the arbitral claimant’s argument relying on a simulation undertaken by the KSOE research centre (“KSOE” – a unit of the Original HHI Signatory, which had retained the technical and research function following the Spin- Off). That evidence was attacked by Energyen, on the basis that this was evidence from a business unit of a company “closely affiliated with” the arbitral claimant (see Award, [220]). 52. On 11 September 2024, the tribunal issued the Award, which ordered Energyen to pay the arbitral claimant damages of US$17,081,438. In a very technically accomplished Mr Justice Foxton Approved Judgment Energyen Corporation v HD Hyundai Heavy Industries Co Ltd and comprehensive award, the tribunal rejected the criticism of KSOE, stating “KSOE may indeed be closely affiliated with HHI but Energyen has not by reference to any evidence or at all, persuaded the Arbitral Tribunal that its findings are not objectively correct” (Award, [250]). 53. Energyen instructed Watson, Farley & Williams LLP in relation to the Award, It was Watson, Farley & Williams LLP who raised the issue of the Spin-Off, which they appear to have encountered in the course of a separate professional engagement. 54. On 8 October 2024, Energyen issued its applications under ss.67 and 68 of the 1996 Act. Energyen’s jurisdiction challenges A summary 55. Section 30(1) of the 1996 Act provide as follows: “(1) Unless otherwise agreed by the parties, the arbitral tribunal may rule on its own substantive jurisdiction, that is, as to— (a) whether there is a valid arbitration agreement, (b) whether the tribunal is properly constituted, and (c) what matters have been submitted to arbitration in accordance with the arbitration agreement.” 56. In this case, Mr Dunning KC advances arguments under each of the three limbs of s.30(1), but by reference to essentially the same or similar underlying complaints: i) ii) The Tribunal made an award in favour of the HHI 2019 Company. No claim by the HHI 2019 Company was ever submitted in the arbitration, referred to the tribunal nor were arbitrators appointed in respect of any such claim. iii) The arbitration was commenced by the Original HHI Signatory, and the disputes falling within the scope of this particular reference as set out in the ToR were limited to claims by the Original HHI Signatory. iv) There was no valid arbitration agreement between Energyen and the HHI 2019 Company. 57. I have already determined this last issue in the Defendants’ favour. The surviving arguments can be approached by reference to two issues: i) Who commenced the arbitration? a) If it was the HHI Original Signatory, Ms Morgan does not suggest that there was ever any change to that state of affairs. Mr Justice Foxton Approved Judgment Energyen Corporation v HD Hyundai Heavy Industries Co Ltd b) c) In those circumstances, it would follow that the tribunal had no jurisdiction to make an award in favour of the HHI 2019 Company, even if (as I have found) it was the HHI 2019 Company which was entitled to enforce the arbitration agreement in the Supply Contract and to enforce the contractual claims under the Supply Contract. That would leave an issue as to what relief I should order in circumstances in which the HHI Original Signatory had commenced an arbitration which culminated in an award in the arbitral claimant’s favour, in which there has been no challenge to the arbitral tribunal’s jurisdiction to make an award in the arbitral claimant’s favour. ii) iii) If it was the HHI 2019 Company which commenced the arbitration, did it do so validly, and/or did any claim by the HHI 2019 Company form part of the arbitral reference? (Although Mr Dunning KC was careful not to submit that this issue was jurisdictional, it appears to be so advanced in paragraph 11 of the Re-Amended Claim Form) Was there a requirement for the HHI 2019 Company to give some form of notice before commencing the arbitration, did it do so, and, if not, what consequences flow from this? Who commenced the arbitration? 58. The starting point under English law is that this issue falls to be determined objectively, by asking “who would reasonably have been understood by the party against whom the claim was asserted to be bringing the claim?” (SEB Trygg Holding AB v Manches [2005] EWCA Civ 1237, [51]). There may be respects in which the subjective belief of the persons instigating the commencement of the arbitration might also be relevant, at least in a “disabling” sense (e.g. because the requisite authority to commence proceedings in the name of a particular company might be absent if the individual had in fact authorised the commencement of proceedings by a different company). There may well be a case for recognising some role for subjective intent when the document commencing the arbitration is genuinely ambiguous on this issue. 59. The authorities in this area frequently discuss the issue of whether it is objectively clear that the claim is intended to be brought by the party actually entitled to enforce the relevant contractual rights: i) In a case in which one company is, throughout, party to the relevant contract with the arbitral respondent, but the arbitration is commenced in the name of another company which was never party to the transaction, classifying this as a “misnomer” is relatively straightforward. This was the position in Unisys International Services Ltd v Eastern Counties Newspapers Ltd[1991] 1 Lloyd’s Rep 538, in which Ralph Gibson LJ held that the arbitration had been validly commenced, inter alia because the solicitors “had always intended to commence the arbitration on behalf of the company which had entered into the contracts” and the respondent knew this (p.529) – the implication being that this was objectively clear and understood. Mr Justice Foxton Approved Judgment Energyen Corporation v HD Hyundai Heavy Industries Co Ltd ii) In thr SEB Trygg Holding case ([2005] EWHC 35 (Comm)), the original vendors of shares included “Old Aachener Re”. Old Aachener Re’s rights were later transferred to AMB and it was dissolved. Old Aachener Re was later named as one of the claimants in the arbitration. This was a case, therefore, in which the identity of the relevant contractual counterparty had changed, with the original counterparty ceasing to exist. In concluding that this too was a misnomer case, Gloster J (at [38]) relied on three matters. The second provides an answer to one of Mr Dunning KC’s principal submissions here and is worth quoting: “The correspondence giving rise to the dispute, confirming that it should be arbitrated, and the initiating documents comprising the letter to the Institute dated 9 November 1998 and the attached Statement of Claim clearly identified the Arbitration Claimants as the sellers of the shares. In other words, there is no error of description, since by the time that proceedings were instituted, AMB had succeeded to all the rights of Old Aachener Re and was indeed party to the Interlife Sale Agreement.” Mrs Justice Gloster also referred to the intentions of the individual who had authorised the commencement of the proceedings, apparently for the purpose of showing that there had not been a contrary intention ([38(iii)]). iii) The reasoning of the Court of Appeal also attaches significance to the clear intention to commence proceedings on behalf of those who were entitled to enforce the rights being asserted in the arbitration (at [51]-[52]): “We prefer to state the question as one of principle, namely, who would reasonably have been understood by the party against whom the claim was asserted to be the entity bringing the claim? … In our case, the proceedings were commenced on the instructions of Mr Merrifield, acting on the authority of Professor Hauptmann. But what was the nature of that authority? Plainly, to protect the interests of the vendors of Interlife. Mr Merrifield had no business to include a claimant in the proceedings, and Professor Hauptmann had no business to permit him to do so, unless that claimant was one of those vendors. The fourth claimant was therefore a claimant as, but only as, one of the vendors. That would have been obvious, to the extent of not even needing thought, to SEB. And it would also have been obvious from a scrutiny of the pleadings … In our case the pleadings unequivocally said that they were brought jointly by the Interlife vendors. In those circumstances the fact that the title of the proceedings did not record that the relevant vendor had transferred all of its rights to AMB under the Transformation Agreement was indeed a mere misnomer.” Implicit in this passage is that it was obvious that the arbitration was being commenced by the vendors as they were constituted at that date, even if one of them had not existed when the relevant contract of sale was concluded and even though the mechanism by which one of the arbitral claimants (viz AMB) had become to be a vendor was not referred to. Mr Justice Foxton Approved Judgment Energyen Corporation v HD Hyundai Heavy Industries Co Ltd iv) While SEB Trygg was a case in which the original contracting entity had ceased to exist, it is clear that the same considerations have equal force in a case where the original party continues to exist and have assets, but there has been a statutory transfer of the relevant rights to another company. That was the position in Harper Versicherungs AG v Indemnity Marine Assurance Company [2006] EWHC 1500 (Comm), as Tomlinson J noted (at [41]). He said that those differences were not “of any relevance to the manner in which the question I am now concerned with was approached” by Gloster J and the Court of Appeal in SEB Trygg, stating at [44]: “I can discern no distinction of any relevance between the facts of SEB Trygg and the present case. The evidence here equally supports the contention that the entity bringing the claim would reasonably have been understood by Harper/Turegum and River Thames to be the party or parties entitled as reinsured or reinsureds to recover under the reinsurance treaty … the reference to Indemnity Marine and London & Scottish was merely misnomer as a result of a mistake as to the continuing entitlement of Indemnity Marine and London & Scottish which misled no one. Reinsurers were left in no doubt that those entitled to collect the claims as reinsureds under the treaty were now resorting to arbitration in pursuit of their claim. Reinsurers sensibly do not assert that they considered the position to be otherwise.” v) The fact that the identification of the arbitral claimant can have a functional element (viz the person with the relevant rights) is particularly clear in maritime arbitration, when a notice of arbitration may identify the claimant simply as the charterer or owner under a particular charterparty, or the claimant under a bill of lading which is subject to an arbitration agreement as, for example, the holder or receiver. This was the position of the charterparty in Internaut Shipping GmbH v Fercometal SARL [2003] EWCA Civ 812, [14] in which “the ‘original’ arbitration was commenced in April 1995, innominately but by the owner or disponent owner under the charterparty.” In circumstances in which the solicitors serving the notice had actual authority to act for the company which was the disponent owner under the charterparty in question, it was held that the innominate notice had validly commenced an arbitration on behalf of that company (Internaut): [88]. 60. With the benefit of that legal background, I turn to the construction of the RFA: i) ii) The effect of my decision on the Spin-Off plan is that the rights being asserted in the RFA were the rights of the HHI 2019 Company, not the Original HHI Signatory. It must have been obvious to Energyen that the RFA was being served on behalf of the HHI entity entitled to enforce the Supply Contract at the relevant time. iii) The RFA was issued in the name of the HHI 2019 Entity, and gave its address, not the name at that time of the HHI Original Signatory, nor was its address at that time given. The fact that, before June 2019, the name and addressed used were those of the HHI Original Signatory does not assist in the identification of who the arbitral claimant was. Mr Justice Foxton Approved Judgment Energyen Corporation v HD Hyundai Heavy Industries Co Ltd iv) While the RFA identifies the arbitral claimant as the party who entered into the Supply Agreement and supplied the relevant products, that was, in substance, true. In the words of both Korean lawyers, so far as the Supply Contract was concerned, the HHI 2019 Company had “a status identical or equivalent to the former company”. It was the party to the Supply Contract, not simply those parts of it which had yet to be performed. The observation of Gloster J in SEB Trygg at [38(ii)] is apposite here. v) While the RFA is inaccurate in describing the arbitral claimant as having been founded in 1972, it had “a status identical or equivalent” to the company which was founded in that year, and was in effect the statutory continuation of that company. At best for Energyen, there was a misdescription of one attribute (the year of foundation) of the arbitral claimant. I am not persuaded that a different result would have followed in SEB Trygg if (as they may very well have done) the documents initiating the arbitration gave the year of founding of the fourth claimant as that of Old Aachener Re. vi) That is sufficient to conclude this issue in favour of the Defendants. But my conclusions as to how the RFA would have been rbeen understood by a reasonable party in the position of Energyen is reinforced by the following: a) My conclusion that in April 2019, Energyen acquired notice of impending transfer and had acknowledged that notice through Mr Park’s electronic signature which was applied without any breach of authority by Mr Jeong, and in any event would have appeared objectively to be an acknowledgement of receipt at director level. b) The Spin-Off plan received extensive publicity and was publicly accessible in Korea on the DART system. vii) Finally, to the extent that the subjective intention of those commencing the arbitration matters, I am satisfied that it is likely that the lawyers who issued the RFA intended to issue it in the name of the HHI 2019 Company (and there was no attempt to persuade me otherwise). Not only is it more likely that they were instructed by the operating company which was actually responsible for the contract in question than by the holding company which was not, but that understanding emerges clearly from the later events: a) b) The notification of a change in name to “HD Hyundai Heavy Industries Co Ltd” on 4 April 2023, following the HHI 2019 Company’s change of its name to that effect a week before. The description of the KSOE Research Centre (which was and remained a business unit of the Original HHI Signatory) as part of the arbitral claimant’s parent (which was true if the arbitral claimant was the HHI 2019 Company). 61. That conclusion is sufficient to dispose of all of Energyen’s challenges premised on the arbitral claimant being the Original HHI Signatory and not the HHI 2019 Company (whichever of the three limbs of s.30(1) they are advanced under). In particular, if the HHI 2019 Company commenced the arbitration and is the arbitral claimant in the RFA, Mr Justice Foxton Approved Judgment Energyen Corporation v HD Hyundai Heavy Industries Co Ltd it cannot credibly be argued that the position changed with the signing of the ToR which I accept “define the jurisdiction of the tribunal and its parameters” and “delimit the precise scope of the tribunal’s mandate” (Republic of Serbia v Imagesat International BV [2009] EWHC 2853 (Comm), [66] and [89]). In particular: i) ii) iii) The ToR section dealing with the parties gives as the current name and address of the arbitralclaimant, the current name and address of the HHI 2019 Company and not the name and address of the Original HHI Signatory. It was the HHI 2019 Company which had nominated Mr Hock Keng Chan, defined in the ToR as the “co-arbitrator nominated by the Claimant”. Section V(a) refers to the Supply Contract and section V(b) to the arbitration agreement to the Supply Contract, to which I have found that at the relevant time the HHI 2019 Company was a party, but not the Original HHI Signatory. iv) Section X(a) incorporates the RFA, the legal effect of which I have already set out. 62. My finding that the HHI 2019 Company is the arbitral claimant would also have been sufficient to dispose of the two challenges under s.68 of the 1996 Act, had they been pursued. Did the HHI 2019 Company validly commence the arbitration? 63. My finding that the HHI 2019 Company was the putative arbitral claimant does not dispose of Energyen’s challenge, because it is argued that, on this basis, there has been no valid reference to arbitration of an essential ingredient of any such claim, viz the HHI 2019 Company’s entitlement to enforce the Supply Contract arbitration agreement and the Supply Contract itself by virtue of the Spin-Off plan. 64. This argument is advanced both by reference to the ICC Rules, and the issue of what “matter” has been referred to arbitration in this particular reference (as defined in the ToR) for the purposes of s.30(1) of the 1996 Act. 65. Article 4 of the ICC Rules provides as follows: “Article 4 – Request for Arbitration 1) A party wishing to have recourse to arbitration under the Rules shall submit its Request for Arbitration (the “Request”) to the Secretariat at any of the offices specified in the Internal Rules. The Secretariat shall notify the claimant and respondent of the receipt of the Request and the date of such receipt. 2) The date on which the Request is received by the Secretariat shall, for all purposes, be deemed to be the date of the commencement of the arbitration. 3) The Request shall contain the following information: a) the name in full, description, address and other contact details of each of the parties; Mr Justice Foxton Approved Judgment Energyen Corporation v HD Hyundai Heavy Industries Co Ltd b) c) d) e) f) g) h) the name in full, address and other contact details of any person(s) representing the claimant in the arbitration; a description of the nature and circumstances of the dispute giving rise to the claims and of the basis upon which the claims are made; a statement of the relief sought, together with the amounts of any quantified claims and, to the extent possible, an estimate of the monetary value of any other claims; any relevant agreements and, in particular, the arbitration agreement(s); where claims are made under more than one arbitration agreement, an indication of the arbitration agreement under which each claim is made; all relevant particulars and any observations or proposals concerning the number of arbitrators and their choice in accordance with the provisions of Articles 12 and 13, and any nomination of an arbitrator required thereby; and all relevant particulars and any observations or proposals as to the place of the arbitration, the applicable rules of law and the language arbitration. of the The claimant may submit such other documents or information with the Request as it considers appropriate or as may contribute to the efficient resolution of the dispute. 4) Together with the Request, the claimant shall: a) make payment of the filing fee required by Appendix III (“Arbitration Costs and Fees”) in force on the date the Request is submitted; and b) submit a sufficient number of copies of the Request for each other party, each arbitrator and the Secretariat where the claimant requests transmission of the Request by delivery against receipt, registered post or courier. In the event that the claimant fails to comply with either of these requirements, the Secretariat may fix a time limit within which the claimant must comply, failing which the file shall be closed without prejudice to the claimant’s right to submit the same claims at a later date in another.” 66. Mr Dunning KC submitted that the RFA was defective in two respects: i) It failed to specify “the basis upon which claims are made” as required by Article 4(3)(c). Mr Dunning KC submits that to comply with that requirement, it is necessary to set out every fact which it would be necessary for the HHI 2019 Company to prove to establish its cause of action under English law, which includes its succession to the Supply Contract by virtue of the Spin-Off plan. Mr Justice Foxton Approved Judgment Energyen Corporation v HD Hyundai Heavy Industries Co Ltd ii) It failed to attach “any relevant agreements and, in particular, the arbitration agreement(s)”, as required by Article 4(3)(e) because it did not attach the Spin- Off plan. 67. The first issue which arises is what the consequence of non-compliance with these stipulations in Article 4(3) would be. That is an issue on which it is surprisingly difficult to find clear guidance. An article setting out what the RFA should contain has long been a feature of the ICC rules, although the list of desiderata has changed to some extent over time. 68. When commenting on the 1998 ICC Rules, Craig, Park and Paulsson, International Chamber of Commerce Arbitration (3rd), (2000) described the then-Article 4(3) as covering “only the minimal requirements of the Request” (p.146). They noted that Article 4(3) required “substantially more than notice of an intention to arbitrate”, but that there was “no requirement that the Request present an exhaustive statement of claim” (p.147). They noted that Article 4(3)(a), requiring “a description of the nature and circumstances of the dispute”, reflected an amendment intended to avoid the “unnecessarily burdensome” previous rule requiring “a full statement of the Claimants’ case”. This was a reference to Article 3(2)(b) of the 1977 ICC Rules, which provided that the RFA: “shall inter alia contain … b. c. a statement of the Claimant's case, the relevant agreements, and in particular the agreement to arbitrate, and such documentation or information as will serve clearly to establish the circumstances of the case.” 69. Significantly, at p.148, Craig, Park and Paulsson state: “It is not clear what procedural remedies would be available if the contents of the Request for Arbitration fell manifestly short of the minimum requirements of the Rules. In several cases respondents have sought to delay or avoid submitting an answer on the grounds that they were insufficiently informed of the claim made against them. Such positions, which serve to delay the proceedings, are usually viewed with suspicion … Attempts of respondents to derail arbitrations in the past, based on allegations that the arbitration had not commenced because the document filed by the claimant did not comply with the requirements of a ‘Request’ have failed. Nevertheless, the possibility that such a procedural stance could be taken led to a relaxation of the formal requirements for the Request, and to substantially eliminating the requirement for filing documentary evidence (other than the agreements themselves) in support of a claim at this early stage of the proceedings”. (emphasis added). There is nothing here which would encourage a reading of Article 4(3) of the ICC Rules as creating a series of hard-edged jurisdictional requirements. 70. Derains and Schwarz, A Guide to the ICC Rules of Arbitration (2nd) (2005), also addressing the 1998 Rules, is to similar effect. They note that Article 4(3) requires Mr Justice Foxton Approved Judgment Energyen Corporation v HD Hyundai Heavy Industries Co Ltd more than a simple “notice of arbitration”, but that the RFA no longer served the function of being the claimant’s only written submission (p.44). They note that the decision was taken by the ICC not to recast the RFA as a simple notice to arbitrate, because this provided more information to the parties and the ICC Court when taking decisions at the early stage of an arbitration, but that “the Rules have always allowed the Claimant considerable discretion in deciding how much detail to provide in the Request concerning the nature and circumstances of its claim” (p.150). Further: i) At p.47, the authors note: “There have occasionally been instances in ICC arbitration where Respondent parties have complained that the information provided in the Request concerning the claim and relief sought is insufficient …. Indeed, in at least one case, a party sought to have an ICC award annulled in the Netherlands on the ground that a Claimant’s alleged failure to comply with the Rules’ requirements in this regard prevented the Arbitral Tribunal from complying with its mandate and placed its Award in conflict with public policy. The challenge of the Award was unsuccessful, however, the Dutch court having concluded that the description of the claim in the Request was sufficiently clear to enable the Respondent to raise a defence”. I have not been able to locate a copy of the decision referred to, International Military Services Ltd v Ministry of Defence and Support for Armed Forces of the Islamic Republic of Iran and Islamic Republic of Iran Hoge Raad (17 January 2003), Nederlands Jurisprudence 2004, 384. ii) At p.51, the authors continue: “When a document calling itself a Request for Arbitration is received by the Secretariat, the Secretariat reviews it in order to determine that it contains the information required to be included in a Request … This being said, the Secretariat is reluctant to undertake to verify thoroughly and systematically the Claimant’s compliance with all of the requirements of the Rules relating to the Request, and the Court has also generally avoided having to decide whether all of the relevant requirements have been satisfied in cases of disagreement … Indeed as a general rule neither the Court nor the Secretariat has wished to be responsible for deciding upon the sufficiency of a party’s satisfaction of the specific requirements of the Rules in cases where this is disputed, except possibly where the alleged breach is manifest … Moreover it has not generally been the position of either the Court or those arbitrators who have been called upon to decide such matters that a defect in a Request should have the consequences of invalidating it, provided it is correctible”. iii) Once again, the commentary would encourage considerable caution before holding that an RFA was invalid and had failed to refer a claim to arbitration because of a failure to comply with one of the stipulations in Article 4(3). 71. Finally, there is the most up-to-date commentary on the 2021 ICC Rules, Buhler and Webster, Handbook of ICC Arbitration: Commentary and Materials (5th) (2021). They note of Article 4(3) at [4-22] that “the word ‘shall’ signals an obligation of the party to Mr Justice Foxton Approved Judgment Energyen Corporation v HD Hyundai Heavy Industries Co Ltd follow the requirements of art 4(3), but leaves each party broad discretion of how to fulfil those requirements”. However, the following paragraph notes “if a party challenges the compliance of the Request with the requirements of art 4(3), the issue of the admissibility or validity will ultimately be decided by the Tribunal”. Further: i) At [4-29], the authors note: “As noted, a claimant may choose to submit a less detailed Request, when the key point is to commence the proceedings. This can be the case if there is a need to interrupt a limitation period or where negotiations between the parties have broken down and the claimant wishes to indicate that the matter will proceed to arbitration in the absence of an agreement. The claimant may also submit a less detailed Request where it is certain of the claim, but less confident of the details or the calculation of damages. A claimant may also file a general request to see the type of response that it receives in the Reply; sometimes, in the simple hope that the other side would be willing to engage in settlement discussions. In addition, in complex construction, oil and gas, telecommunication or intellectual property-related disputes, the claimant may decide that the matter will have to be the subject of detailed submissions later in any event and limit itself to outlining the basic elements and framework for the claim in the Request.” ii) At [4-30], they continue: “In deciding whether the minimum requirements are met, one of the issues that may be expected is whether the respondent was made aware in a general fashion of the claims being made against it. As a result, in most cases, where the claimant has sought to comply with the list of required elements in art.4(3) there should be very little risk of the brevity of the Request causing a procedural issue in annulment or enforcement proceedings.” iii) At [4-31] they state: “The Secretariat reviews the material received from a claimant to check the names and contact details of the parties and the existence of an ICC arbitration agreement between the parties named in the Request and any other information that may be relevant for the ICC Court and/or the Secretariat at this stage of the proceedings. However, the Secretariat does not review the Request to determine whether the claimant has met each requirement of the Rules. That will be a matter for the Tribunal, if challenged by the respondent.” 72. I am satisfied that not every aspects of Article 4(3) creates a jurisdictional requirement, such that alleged non-compliance would provide a jurisdictional objection to the validity of any resultant award for the purposes of ss.30(1) and 67 of the 1996 Act: i) That could have the consequence that an error in giving the parties’ address, or the omission of contact details, would prevent a valid arbitration being commenced. Mr Justice Foxton Approved Judgment Energyen Corporation v HD Hyundai Heavy Industries Co Ltd ii) Many of the matters in Article 4(3) offer considerable scope for divergent views (or, as it is put in two of the commentaries, “discretion”) as to what would be necessary to comply with them, and whether any description is accurate: for example Article 4(3)(c). It seems improbable that a jurisdictional argument could be raised (and re-fought before supervisory and enforcement courts) as to whether what had been said was a sufficient or accurate description, or whether an omitted agreement was “relevant” for Article 4(3)(e) purposes (essentially the issues here). iii) iv) Similarly, it seems highly improbable that no valid arbitration can be commenced by a claimant who could, but does not, include an estimate of quantum for the purposes of Article 4(d)(e) (or that the former question can be re-argued de novo under s.67). Indeed the ICC Rules themselves strongly suggest that Article 4(3) is not setting out a series of jurisdictional pre-conditions. Provision is made in Article 4(4) for what is to happen if the fee is not paid or sufficient copies of the RFA deposited: the Secretariat can set a time limit for doing so and in default of compliance close the file. There is no similar power in relation to Article 4(3). v) Mr Dunning KC stressed the importance of the Article 4(3) requirements on the basis that they were necessary for the Secretariat to perform its “screening function” under Article 6 of the ICC Rules. Article 6(4) allows the Secretariat in appropriate cases to refer references to the ICC Court for the Court to consider whether a prima facie case that an arbitration agreement exists has been made out, before the reference proceeds. I agree that the screening process will function more efficiently if the RFA contains more information. However, it is clear that the process is relatively limited, and does not (currently at least) involve checking that Article 4(3) has been complied with see [71(iii)]. In any event, the existence of that screening process is not a sufficient basis for concluding that each of the stipulations in Article 4(3) creates a threshold requirement for validly commencing an ICC arbitration. 73. I accept that there will be some irreducible minimum requirement for an RFA before an ICC arbitration can be said to have been validly commenced. In circumstances in which the ICC itself and experienced commentators on its rules have ducked the task, I am not going to attempt to define exactly where that line falls to be drawn. There is also an issue of whether, or to what extent, complaints about non-compliance with the irreducible minimum requirements of Article 4(3) raise issues of admissibility for the tribunal rather than issues of jurisdiction for s.30(1) purposes (cf. Mustill & Boyd, [5.11-5.17]). I did not hear argument on this issue, but certain of the descriptions in the commentaries lend support to this contention (see [69], [70(ii)] and [71]), and it is certainly a more attractive outcome than allowing points of this kind to be taken de novo by a party who has fought and lost a highly technical 3-year arbitration on a s.67 challenge to a comprehensive and closely reasoned award. 74. Nonetheless, I shall assume that there is a minimum requirement which a RFA must satisfy to commence an ICC arbitration, and that the issue of whether that requirement has been met is jurisdictional in nature for s.30(1) purposes. The issue for determination is whether the complaints advanced by Energyen can be said to have this effect. Mr Justice Foxton Approved Judgment Energyen Corporation v HD Hyundai Heavy Industries Co Ltd 75. First, it is said that the HHI 2019 Company was required to set out the fact and legal effect of the Spin-Off in the RFA by reason of the requirement in Article 4(3)(c) to provide “a description … of the basis upon which the claims are made”. It was argued that these words (introduced without fanfare into the 2012 ICC Rules) created a requirement to set out those facts which it would be necessary for the claimant to prove, if traversed, to support its claim for relief, by analogy with the English law pleading requirements in Coburn v Colledge [1897] 1 QB 702, 706-707 and Letang v Cooper [1965] 1 QB 232, 242-43). As to this: i) ii) iii) iv) v) I am quite satisfied that Article 4(3)(c) imposes no such requirement, and that the attempt to read technical requirements of English law into rules intended to apply to parties of all nationalities, many of whom will not be represented by any (still less English) lawyers, would involve a significant false step. While the ICC arbitration rules in this case form part of an arbitration agreement governed by English law providing for arbitration with a seat in England and Wales, the meaning and effect of the ICC Rules should essentially be the same, whatever the seat and whatever the applicable law of the arbitration agreement. While I accept the ICC Rules clearly require more than a mere “notice of arbitration”, there is some analogy here with the broad and flexible approach adopted by English law in the context of s.14 of the 1996 Act when determining whether arbitration has been commenced and in respect of what matters, and the reasons for that approach (Mustill & Boyd, [7.17] and [7.20]). The language of Article 4.3(c) – requiring a “description” of the basis of claim, rather than that it be set out – is indicative of a broad and non-technical approach. That is supported by the background to the introduction of the word “description” in the 1998 ICC Rules ([68]), and the commentaries at [70] and [71]. It would follow from Mr Dunning KC’s argument that if there was a legal dispute between the parties as to what the Letang v Cooper ingredients of the asserted cause of action were, there would be circumstances in which that question could be re-opened de novo under s.67 even though no appeal on a point of English law under s.69 of the 1996 Act was available or could be advanced. In relation to this particular stipulation, Buhler and Webster note at [4.50] that “the Request should set out the legal basis of the claimant’s claims and not just be limited to facts. However, the claimant will usually do so in general terms referring to elements such as breach of contract or breach of applicable law.” That is consistent with the use of a rather high level description of the claim. That was done here. I am satisfied that the basis of claim was sufficiently and accurately described in this case as a claim for breach of the Supply Contract (without deciding that a failure to communicate this information in the RFA would necessarily have rendered it invalid, an issue best left to a case where it arises). 76. The second stipulation relied upon by Mr Dunning KC is Article 4.3(e), requiring the RFA to contain “any relevant agreements and, in particular, the arbitration agreement(s)”: Mr Justice Foxton Approved Judgment Energyen Corporation v HD Hyundai Heavy Industries Co Ltd i) ii) iii) iv) In this case, the arbitration agreement in the Supply Contract was identified, so if Article 4(3)(e) creates a jurisdictional requirement to identify the arbitration agreement, it was satisfied. However, assuming it goes that far, Article 4.3(e) can require no more than that (not least given the word “and in particular”). The identification of “relevant agreements” offers obvious scope for different evaluations of relevance. Derains and Schwarz, A Guide to the ICC Rules of Arbitration (2nd) (2005), 48 said of the equivalent provision in the 1998 Rules that “it allows the Claimant a great deal of leeway in determining how much supporting documentation to submit together with a request”. I am not persuaded that Article 4.3(e) creates a jurisdictional requirement to identify every document relevant to the claimant’s contention that it is a party to the identified arbitration agreement (for example the letters said to constitute offer and acceptance or which address any signatory’s authority or demonstrate ratification of unauthorised acts). In any event, the Spin-Off plan is not an agreement (still less one between the arbitral claimant and respondent, which I suspect is what Article 4.(3)(e) is aiming at), but a unilateral legal act by the company effecting the spin-off which has legal effect under the legislation of its place of incorporation. 77. Mr Dunning KC also submitted that the HHI 2019 Company’s entitlement, by virtue of the Spin-Off plan, to enforce the Supply Contract was not a “matter … submitted to arbitration in accordance with the arbitration agreement” for the purposes of s.30(1)(c) of the 1996 Act. However the matter, for s.30(1) purposes, does not fall to be identified in such a granular matter, but by adopting a broad and flexible approach (Mustill & Boyd, [5.33]-[5.34]). The matter submitted to arbitration for s.30(1)(c) purposes was the HHI 2019 Company’s claim for relief arising from the alleged breach of the Supply Contract. That necessarily encompassed any issue as to the HHI 2019 Company’s entitlement to enforce that contract. If Energyen had raised the issue of the HHI 2019 Company’s right to enforce the Supply Contract, and the HHI 2019 Company had responded by referring to the Spin-Off plan, I cannot accept that this contention would not have fallen within the scope of the existing reference, such the Energyen could have insisted on a fresh arbitration being commenced. 78. While not itself an answer to Mr Dunning KC’s point of itself, I would note that, if it had merit, the same point would appear to have been available but not taken in SEB Trygg Holding AB v Manches [2005] EWHC 35 (Comm), [2005] EWCA Civ 1237. The notice issue 79. There are a number of English authorities which address the situation in which, after an arbitration has been commenced and a tribunal constituted, the right to arbitrate the dispute which is the subject of the existing reference is transferred to a new party: i) In Baytur v Finagro SA [1992] QB 610, the effects of a de-merger under French law after an arbitration had been commenced was analysed as an equitable assignment under English law (p.617A). In a case where the transfer involves (or is treated as involving) an assignment governed by English law, it is possible to Mr Justice Foxton Approved Judgment Energyen Corporation v HD Hyundai Heavy Industries Co Ltd analyse any notice requirement as a substantive law requirement arising under the English law of assignment where notice “perfects” the assignment, rather than involving any special rule of arbitration law (see Hobhouse J in Montedipe SpA v JTP-RO Jugotanker (‘The Jordan Nicolov) [1990] 2 Lloyd’s Rep 11, 18). However, both The Jordan Nicolov and Baytur refer not simply to the requirements for a valid transfer between claimant entities, but to the need for the transferee to submit to the jurisdiction of the existing arbitral tribunal by giving notice. ii) In Eurosteel Ltd v Stinnes AG [2000] CLC 470, 475-76, the legal mechanism by which the transfer took place was universal succession as a matter of German law (the transfer taking place, once again, during an active arbitral reference). In that case, no notice was necessary to perfect the transfer between claiming entities (Longmore J reaching this conclusion as a matter of German law: p.473). However, he held that English law, as the law of the forum, imposed a procedural (and hence non-jurisdictional) requirement for notice to be given to the tribunal, which could still be given. If, as a matter of the applicable substantive law, the transferee (automatically and without any need for notice or consent) succeeds by way of universal succession to the contractual relationships with the existing tribunal (for these relationships see Mustill & Boyd, [3.93]), it is not immediately obvious why there should be any procedural requirement of notice, and what the source of such a requirement might be. Longmore J suggested it is a requirement of the law of the forum (i.e. the arbitration law of England and Wales applicable to arbitrations seated here) and “procedural” in nature. That categorisation avoids the unsatisfactory position of there being different notice requirements applying depending on the applicable law of the reference or the law(s) applicable to the contract between an arbitrating party and the arbitrators. There are obvious pragmatic benefits in a procedural notice obligation of this kind (not least because the statutory succession may raise new issues of potential conflict of interest which did not arise before so far as the tribunal is concerned). The procedural obligation to provide notice in these circumstances can be seen as an aspect of the general duty of the partes under s.40(1) of the 1996 Act. It is clear, however, that the procedural obligation to give notice in such circumstances is not a condition of the tribunal’s jurisdiction, and Mr Dunning KC was careful not to suggest otherwise. In the present case, 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. I can see no warrant for imposing as a matter of the arbitration law of England and Wales a procedural obligation to give notice prior to commencement of an arbitral reference of a statutory transfer of the right to arbitrate and the claim it is seeking to assert. There was no such suggestion in SEB Trygg Holding AB v Manches [2005] EWHC 35 (Comm), [2005] EWCA Civ 1237. Such an obligation must arise by virtue of the law applicable to the transfer as a condition of its efficacy or not at all. It was common ground in this case that Korean law imposes no such requirement, and therefore this argument takes Energyen nowhere. 80. 81. The position if the Original HHI Signatory had been the arbitral claimant? Mr Justice Foxton Approved Judgment Energyen Corporation v HD Hyundai Heavy Industries Co Ltd 82. If the Original HHI Signatory commenced the arbitral reference, it is common ground that it remained the arbitral claimant at all material times thereafter. In those circumstances, it was common ground that the arbitral tribunal had no jurisdiction to make an award in favour of a non-party to the arbitration. 83. Had this issue arise, there was an issue as to whether the court should grant relief under s.67 by setting aside the Award in its entirety, or simply vary the award to ensure that it was in the current name of the Original HHI Signatory rather than the name of the HHI 2019 Company. As to this: i) ii) There was no s.67 challenge to the Original HHI Signatory’s rights to an award in its name. The s.68 challenges premised on the Original HHI Signatory being the arbitral claimant were not pursued and in any event went nowhere. The claim that the change in the arbitral claimant’s name in the arbitration had been obtained on a false basis would have been remedied by varying the award to revert to the Original HHI Signatory’s name. The suggestion that substantial injustice was caused because there was a real possibility of the tribunal attaching different weight to the KSOE research unit simulation if they had known it was performed by a division of the arbitral claimant itself rather than its 100% parent is obviously fanciful, not least because it is clear that what was obviously a technically competent tribunal assessed that work on its merits. iii) The court has a discretion as to what relief to grant on a s.67 application, and in an appropriate case can refuse to grant any relief at all (Czech Republic v Diag Human SE [2024] EWHC 2102 (Comm), [124] and [133]). Mr Dunning KC submitted that it would not be appropriate merely to vary the Award to correct the assumed error in the identification of the arbitral claimant. He suggested that the Defendants could not seek such a variation when their own case is that the rights which are the subject of the Award belong to the HHI 2019 Company and not the HHI Original Signatory, and that the court should, on that hypothesis, require an undertaking by the HHI 2019 Company to abandon its rights, and evidence that such an abandonment would be effective as a matter of Korean law. iv) I would not regard the fact that it was the Defendants’ position that the relevant rights were those of the HHI 2019 Company as precluding the court from varying the Award to reflect what (on this assumption) is the fact that the arbitration was commenced by the HHI Original Signatory, pursued by the HHI Original Signatory and the Award made in its favour. Energyen has brought no challenge to the HHI Original Signatory’s rights to an award in its name. Certainly, all other things being equal, I would regard variation of the Award to ensure it was in the name of the arbitral claimant as a solution more in keeping with s.1 of the 1996 Act than allowing Energyen a “do over” of a three year arbitration fought and lost on technical grounds on the basis that the claim had been brought by the original signatory, whose position was that the rights in question were in fact those of its 100% subsidiary. v) I accept, however, that it would not be appropriate to expose Energyen to the risk of enforcement by both Defendants. Had this issue been live, it would have been necessary to consider whether undertakings about enforcement should be Mr Justice Foxton Approved Judgment Energyen Corporation v HD Hyundai Heavy Industries Co Ltd provided as a condition of ordering a particular form of relief. In view of my earlier conclusions, it is not necessary to explore this question further. The section 73 argument 84. That leaves what is, necessarily, a highly contingent issue of whether, if Energyen had had any legitimate complaints under ss.67 or 68 of the 1996 Act, they had been lost by reason of s.73 of the 1996 Act. The potential challenges to which s.73 might have fallen to be applied are: i) ii) iii) the complaint, if the HHI Original Signatory had been the correct arbitral complainant, that the Award was made in the name of the HHI 2019 Company; the complaint, if the HHI 2019 Company is the correct arbitral claimant, that it had failed validly to commence the arbitration under Article 4(3) by reason of its failure to set out that its entitlement to enforce the Supply Contract arose by reason of the Spin-Off plan and to refer to that plan; and the complaint, if the HHI 2019 Company is the correct arbitral claimant, that it did not give notice of the transfer of the Supply Contract to the Tribunal or Energyen for the purposes of the arbitration. 85. This issue revealed potential disputes as to whether the s.73 test was concerned with the knowledge (actual or that which would have followed from the exercise of reasonable diligence) of those individuals who constituted the directing mind and will of Energyen (at least for the purposes of the conduct of the arbitration), or some other category of employees or agents, and a potential issue in this context as to how to treat knowledge which ought to have been available to the company generally at some point prior to the commencement of the arbitration, but may not have been with the circle of knowledge reasonably available to those involved in the arbitration. It also raised the issue of whether there were duties of investigation in the context of the conduct of the arbitration which were relevant for the s.73 enquiry. As these issues do not arise on my findings, and they were explored in argument only to a limited extent, it is not necessary to address them. Conclusion 86. For these reasons, Energyen’s challenges to the Award are dismissed.