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

In a case in which one company is, throughout, party to the relevant contract with the arbitral respondent, but the arbitration is commenced in the name of another company which was never party to the transaction, classifying this as a “misnomer” is relatively straightforward. This was the position in Unisys International Services Ltd v Eastern Counties Newspapers Ltd[1991] 1 Lloyd’s Rep 538, in which Ralph Gibson LJ held that the arbitration had been validly commenced, inter alia because the solicitors “had always intended to commence the arbitration on behalf of the company which had entered into the contracts” and the respondent knew this (p.529) – the implication being that this was objectively clear and understood.

In thr SEB Trygg Holding case ([2005] EWHC 35 (Comm)), the original vendors of shares included “Old Aachener Re”. Old Aachener Re’s rights were later transferred to AMB and it was dissolved. Old Aachener Re was later named as one of the claimants in the arbitration. This was a case, therefore, in which the identity of the relevant contractual counterparty had changed, with the original counterparty ceasing to exist. In concluding that this too was a misnomer case, Gloster J (at [38]) relied on three matters. The second provides an answer to one of Mr Dunning KC’s principal submissions here and is worth quoting:

“The correspondence giving rise to the dispute, confirming that it should be arbitrated, and the initiating documents comprising the letter to the Institute dated 9 November 1998 and the attached Statement of Claim clearly identified the Arbitration Claimants as the sellers of the shares. In other words, there is no error of description, since by the time that proceedings were instituted, AMB had succeeded to all the rights of Old Aachener Re and was indeed party to the Interlife Sale Agreement.”

The reasoning of the Court of Appeal also attaches significance to the clear intention to commence proceedings on behalf of those who were entitled to enforce the rights being asserted in the arbitration (at [51]-[52]):

“We prefer to state the question as one of principle, namely, who would reasonably have been understood by the party against whom the claim was asserted to be the entity bringing the claim? … In our case, the proceedings were commenced on the instructions of Mr Merrifield, acting on the authority of Professor Hauptmann. But what was the nature of that authority? Plainly, to protect the interests of the vendors of Interlife. Mr Merrifield had no business to include a claimant in the proceedings, and Professor Hauptmann had no business to permit him to do so, unless that claimant was one of those vendors. The fourth claimant was therefore a claimant as, but only as, one of the vendors.

That would have been obvious, to the extent of not even needing thought, to SEB. And it would also have been obvious from a scrutiny of the pleadings … In our case the pleadings unequivocally said that they were brought jointly by the Interlife vendors. In those circumstances the fact that the title of the proceedings did not record that the relevant vendor had transferred all of its rights to AMB under the Transformation Agreement was indeed a mere misnomer.”

While SEB Trygg was a case in which the original contracting entity had ceased to exist, it is clear that the same considerations have equal force in a case where the original party continues to exist and have assets, but there has been a statutory transfer of the relevant rights to another company. That was the position in Harper Versicherungs AG v Indemnity Marine Assurance Company [2006] EWHC 1500 (Comm), as Tomlinson J noted (at [41]). He said that those differences were not “of any relevance to the manner in which the question I am now concerned with was approached” by Gloster J and the Court of Appeal in SEB Trygg, stating at [44]:

“I can discern no distinction of any relevance between the facts of SEB Trygg and the present case. The evidence here equally supports the contention that the entity bringing the claim would reasonably have been understood by Harper/Turegum and River Thames to be the party or parties entitled as reinsured or reinsureds to recover under the reinsurance treaty … the reference to Indemnity Marine and London & Scottish was merely misnomer as a result of a mistake as to the continuing entitlement of Indemnity Marine and London & Scottish which misled no one. Reinsurers were left in no doubt that those entitled to collect the claims as reinsureds under the treaty were now resorting to arbitration in pursuit of their claim. Reinsurers sensibly do not assert that they considered the position to be otherwise.”

The fact that the identification of the arbitral claimant can have a functional element (viz the person with the relevant rights) is particularly clear in maritime arbitration, when a notice of arbitration may identify the claimant simply as the charterer or owner under a particular charterparty, or the claimant under a bill of lading which is subject to an arbitration agreement as, for example, the holder or receiver. This was the position of the charterparty in Internaut Shipping GmbH v Fercometal SARL [2003] EWCA Civ 812, [14] in which “the ‘original’ arbitration was commenced in April 1995, innominately but by the owner or disponent owner under the charterparty.” In circumstances in which the solicitors serving the notice had actual authority to act for the company which was the disponent owner under the charterparty in question, it was held that the innominate notice had validly commenced an arbitration on behalf of that company (Internaut): [88].

The effect of my decision on the Spin-Off plan is that the rights being asserted in the RFA were the rights of the HHI 2019 Company, not the Original HHI Signatory.

It must have been obvious to Energyen that the RFA was being served on behalf of the HHI entity entitled to enforce the Supply Contract at the relevant time.

The RFA was issued in the name of the HHI 2019 Entity, and gave its address, not the name at that time of the HHI Original Signatory, nor was its address at that time given. The fact that, before June 2019, the name and addressed used were those of the HHI Original Signatory does not assist in the identification of who the arbitral claimant was.

While the RFA identifies the arbitral claimant as the party who entered into the Supply Agreement and supplied the relevant products, that was, in substance, true. In the words of both Korean lawyers, so far as the Supply Contract was concerned, the HHI 2019 Company had “a status identical or equivalent to the former company”. It was the party to the Supply Contract, not simply those parts of it which had yet to be performed. The observation of Gloster J in SEB Trygg at [38(ii)] is apposite here.

While the RFA is inaccurate in describing the arbitral claimant as having been founded in 1972, it had “a status identical or equivalent” to the company which was founded in that year, and was in effect the statutory continuation of that company. At best for Energyen, there was a misdescription of one attribute (the year of foundation) of the arbitral claimant. I am not persuaded that a different result would have followed in SEB Trygg if (as they may very well have done) the documents initiating the arbitration gave the year of founding of the fourth claimant as that of Old Aachener Re.

That is sufficient to conclude this issue in favour of the Defendants. But my conclusions as to how the RFA would have been rbeen understood by a reasonable party in the position of Energyen is reinforced by the following:

Finally, to the extent that the subjective intention of those commencing the arbitration matters, I am satisfied that it is likely that the lawyers who issued the RFA intended to issue it in the name of the HHI 2019 Company (and there was no attempt to persuade me otherwise). Not only is it more likely that they were instructed by the operating company which was actually responsible for the contract in question than by the holding company which was not, but that understanding emerges clearly from the later events:

The ToR section dealing with the parties gives as the current name and address of the arbitralclaimant, the current name and address of the HHI 2019 Company and not the name and address of the Original HHI Signatory.

It was the HHI 2019 Company which had nominated Mr Hock Keng Chan, defined in the ToR as the “co-arbitrator nominated by the Claimant”.

Section V(a) refers to the Supply Contract and section V(b) to the arbitration agreement to the Supply Contract, to which I have found that at the relevant time the HHI 2019 Company was a party, but not the Original HHI Signatory.

Section X(a) incorporates the RFA, the legal effect of which I have already set out.