Republic of Korea v Elliott Associates, LP

Republic of Korea v Elliott Associates, LP

The NPS is not a de jure or de facto organ of the Korean State under international law, nor did it exercise delegated governmental authority in voting for the Merger. The acts of the NPS are not attributable to Korea under Article 11.1(3) of the Treaty, and the Treaty displaces customary international law (ILC...

Source-derived case information.

Parties
Claimant: Republic of Korea; Defendant: Elliott Associates, LP
Jurisdiction
England and Wales
Judgment Date
23 February 2026
Procedural Posture
Arbitration Act 1996 S.67 Challenge (set Aside Arbitral Award) / High Court Judgment After Remittal From Court of Appeal
Outcome
Partial setting aside of arbitral award; remittal to tribunal for reconsideration of causation and relief based on Blue House Measures only.
Legal Topics
Attribution of State Responsibility, Jurisdictional Thresholds in Investment Arbitration, Interpretation of Bilateral Investment Treaties, Causation in Treaty Breaches, Remedies Under Arbitration Act 1996
Arbitration International Investment Law Public International Law Attribution of State Responsibility Jurisdictional Thresholds in Investment Arbitration Interpretation of Bilateral Investment Treaties Causation in Treaty Breaches Remedies Under Arbitration Act 1996

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Parties

Republic of Korea

Claimant

Elliott Associates, LP

Defendant

Procedural Posture

Arbitration Act 1996 S.67 Challenge (set Aside Arbitral Award) / High Court Judgment After Remittal From Court of Appeal

Legal Issues

  1. 1 Whether the acts of the National Pension Service (NPS) are attributable to Korea under Article 11.1(3) of the USA-Korea Free Trade Agreement (Treaty)
  2. 2 Whether the NPS is a de facto or de jure organ of the State under international law
  3. 3 Whether the NPS exercised delegated governmental authority in voting for the Merger

Ratio Decidendi

The NPS is not a de jure or de facto organ of the Korean State under international law, nor did it exercise delegated governmental authority in voting for the Merger. The acts of the NPS are not attributable to Korea under Article 11.1(3) of the Treaty, and the Treaty displaces customary international law (ILC Article 8) as a basis for attribution. Only measures adopted or maintained by the President, Blue House, Minister, and MHW are attributable to Korea for Treaty purposes. The arbitral tribunal exceeded its jurisdiction to the extent it found the NPS's acts attributable to Korea and based relief on those acts. The findings and relief based solely on the Blue House Measures remain...

Court Disposition

Partial setting aside of arbitral award; remittal to tribunal for reconsideration of causation and relief based on Blue House Measures only.

Orders

  • The award is set aside insofar as it finds the NPS was an organ of the State and that the NPS's conduct constituted a breach of Article 11.5 of the Treaty.
  • The issue of causation and relief for breaches constituted by the Blue House Measures is remitted to the arbitral tribunal for reconsideration.