Claim No: CL-2024-000563 - [2025] EWHC 1586 (Comm)

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”.

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.”

Paragraph 7 of the RFA refers to the arbitral claimant as the original signatory of the Supply Contract.

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.

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.

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 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.

On 28 March 2023:

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 reference, please see the Claimant’s official website at 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.”

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.

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.”

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”.

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]).

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 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]).

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.

On 8 October 2024, Energyen issued its applications under ss.67 and 68 of the 1996 Act.