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

Fecha: 26-Jun-2025

The notice issue

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:

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 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.

80.

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.

81.

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.