Summary

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

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.

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) the Tribunal was misled into accepting a change in the name of the claimant party on the basis of a false representation; and

ii) 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.

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.

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.