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

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.

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.

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.

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 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.