“As you may have heard from the newspapers/news, we plan to spin off the company on June 3, 2019 and establish a new ‘Hyundai Heavy Industries Co Ltd’ …. We are sending you a notice of succession of contractual status following the spin-off so please refer to the attached notice and confirm receipt by providing your electronic signature on HiPro”
“The ‘Company’ shall, by way of a simple vertical spin-off in accordance with Articles 530-2 through 530-12 of the Korean Commercial Code, spin off the Spun-off Business [Units/Areas] (as defined below) from the businesses it engages in and establish Hyundai Heavy Industries Co., Ltd. (tentatively named) (the ‘New Company’), and the Company shall survive such spin-off and change its trade name to Korea Shipbuilding & Offshore Engineering Co., Ltd. (tentatively named) (such surviving entity, the ‘Surviving Company’.”
“the New Company shall succeed to labor and legal relationships (labor contract, etc.) of all employees who work at the Spun-off Business [Units/Areas] as of the date of the Spin-off.” vi) Paragraph 2(6) provided for the attribution of liabilities depending on whether the liabilities are “mainly related to the Spun-off Business [Units/Areas]”. vii) Paragraph 2(8) provided for the “allocation of claims or other rights”, to which paragraph 6 was to apply. viii) Paragraph 2(9) provided that “any contract to which the Company is a party prior to the date of the Spin-off shall be, if it relates to the Spun-off Business [Units/Areas]” attributed to the New Company. ix) Paragraph 5(12) provided that “the New Company shall succeed to employment and related legal relationships (labor contract etc) of all employees who, as of the date of the Spin-off, work at the Spun-off Business [Units/Areas]”. x) Paragraph 6(1) provides for the position where, before the date of the Spin-Off, “there is any change in the assets and liabilities (or contractual relationship) of the Spun-off Business Units due to business or financial changes in the Spun-off Business Units.”
“While the lexical meaning of 사업부문 (sa-eop bu-mun, 事業部門) may be rendered as “business division” or “business area,” its interpretation must also be approached from a pragmatic and contextual linguistic perspective. In particular, its function and nuance should be considered within the discursive environment of corporate restructuring and the statutory language of the Spin-Off Plan. Such an approach recognises that broader meaning may emerge not only from dictionary definitions but through the situated use of terminology in legal and institutional documents.”
“(1) A company may be divided to form one or more new companies. (2) A company may merge with one or more existing companies after its division (hereinafter referred to as ‘merger after division’). (3) A company may be divided to form one or more new companies, which, in succession, may merge with other existing companies.”
“A newly established company by simple division, succeeding company after division or newly established company by merger after division shall succeed to the rights and obligations of the spin-off company, as prescribed by the spin-off plan or an agreement for the merger after division.”
“the principle of division and the contents of the right to be succeeded, the existence of the divided company, the rational intention of the divided company that prepared the division plan and the shareholders who approved it, the circumstances of the division, the purpose and true intention to be achieved by the division, the practice of transactions, etc. should be comprehensively considered to be reasonably interpreted in accordance with the laws of logic and experience, common sense of society, and conventional wisdom of transactions.”
“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.”
“The Claimant hereby informs the Tribunal and counsel for the Respondent that pursuant to a resolution of the board of directors on28 March 2023 , the Claimant, Hyundai Heavy Industries Co., Ltd has changed its registered name to “HD Hyundai Heavy Industries Co., Ltd.” effective from28 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.”
“(1) Unless otherwise agreed by the parties, the arbitral tribunal may rule on its own substantive jurisdiction, that is, as to— (a) whether there is a valid arbitration agreement, (b) whether the tribunal is properly constituted, and (c) what matters have been submitted to arbitration in accordance with the arbitration agreement.” (a) whether there is a valid arbitration agreement, (b) whether the tribunal is properly constituted, and (c) what matters have been submitted to arbitration in accordance with the arbitration agreement.”
“The correspondence giving rise to the dispute, confirming that it should be arbitrated, and the initiating documents comprising the letter to the Institute dated9 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.”
“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.”
“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.” v) 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.”
“Article 4 – Request for Arbitration 1) A party wishing to have recourse to arbitration under the Rules shall submit its Request for Arbitration (the “Request”) to the Secretariat at any of the offices specified in the Internal Rules. The Secretariat shall notify the claimant and respondent of the receipt of the Request and the date of such receipt. 2) The date on which the Request is received by the Secretariat shall, for all purposes, be deemed to be the date of the commencement of the arbitration. 3) The Request shall contain the following information: a) the name in full, description, address and other contact details of each of the parties; b) the name in full, address and other contact details of any person(s) representing the claimant in the arbitration; c) a description of the nature and circumstances of the dispute giving rise to the claims and of the basis upon which the claims are made; d) a statement of the relief sought, together with the amounts of any quantified claims and, to the extent possible, an estimate of the monetary value of any other claims; e) any relevant agreements and, in particular, the arbitration agreement(s); f) where claims are made under more than one arbitration agreement, an indication of the arbitration agreement under which each claim is made; g) all relevant particulars and any observations or proposals concerning the number of arbitrators and their choice in accordance with the provisions of Articles 12 and 13, and any nomination of an arbitrator required thereby; and h) all relevant particulars and any observations or proposals as to the place of the arbitration, the applicable rules of law and the language of the arbitration.The claimant may submit such other documents or information with the Request as it considers appropriate or as may contribute to the efficient resolution of the dispute. a) the name in full, description, address and other contact details of each of the parties; b) the name in full, address and other contact details of any person(s) representing the claimant in the arbitration; c) a description of the nature and circumstances of the dispute giving rise to the claims and of the basis upon which the claims are made; d) a statement of the relief sought, together with the amounts of any quantified claims and, to the extent possible, an estimate of the monetary value of any other claims; e) any relevant agreements and, in particular, the arbitration agreement(s); f) where claims are made under more than one arbitration agreement, an indication of the arbitration agreement under which each claim is made; g) all relevant particulars and any observations or proposals concerning the number of arbitrators and their choice in accordance with the provisions of Articles 12 and 13, and any nomination of an arbitrator required thereby; and h) all relevant particulars and any observations or proposals as to the place of the arbitration, the applicable rules of law and the language of the arbitration.The claimant may submit such other documents or information with the Request as it considers appropriate or as may contribute to the efficient resolution of the dispute. 4) Together with the Request, the claimant shall: a) make payment of the filing fee required by Appendix III (“Arbitration Costs and Fees”) in force on the date the Request is submitted; and b) submit a sufficient number of copies of the Request for each other party, each arbitrator and the Secretariat where the claimant requests transmission of the Request by delivery against receipt, registered post or courier. In the event that the claimant fails to comply with either of these requirements, the Secretariat may fix a time limit within which the claimant must comply, failing which the file shall be closed without prejudice to the claimant’s right to submit the same claims at a later date in another.”
“shall inter alia contain … b. a statement of the Claimant's case, c. the relevant agreements, and in particular the agreement to arbitrate, and such documentation or information as will serve clearly to establish the circumstances of the case.”
“There have occasionally been instances in ICC arbitration where Respondent parties have complained that the information provided in the Request concerning the claim and relief sought is insufficient …. Indeed, in at least one case, a party sought to have an ICC award annulled in the Netherlands on the ground that a Claimant’s alleged failure to comply with the Rules’ requirements in this regard prevented the Arbitral Tribunal from complying with its mandate and placed its Award in conflict with public policy. The challenge of the Award was unsuccessful, however, the Dutch court having concluded that the description of the claim in the Request was sufficiently clear to enable the Respondent to raise a defence”
“As noted, a claimant may choose to submit a less detailed Request, when the key point is to commence the proceedings. This can be the case if there is a need to interrupt a limitation period or where negotiations between the parties have broken down and the claimant wishes to indicate that the matter will proceed to arbitration in the absence of an agreement. The claimant may also submit a less detailed Request where it is certain of the claim, but less confident of the details or the calculation of damages. A claimant may also file a general request to see the type of response that it receives in the Reply; sometimes, in the simple hope that the other side would be willing to engage in settlement discussions. In addition, in complex construction, oil and gas, telecommunication or intellectual property-related disputes, the claimant may decide that the matter will have to be the subject of detailed submissions later in any event and limit itself to outlining the basic elements and framework for the claim in the Request.” ii) At [4-30], they continue: “In deciding whether the minimum requirements are met, one of the issues that may be expected is whether the respondent was made aware in a general fashion of the claims being made against it. As a result, in most cases, where the claimant has sought to comply with the list of required elements in art.4(3) there should be very little risk of the brevity of the Request causing a procedural issue in annulment or enforcement proceedings.” iii) At [4-31] they state: “The Secretariat reviews the material received from a claimant to check the names and contact details of the parties and the existence of an ICC arbitration agreement between the parties named in the Request and any other information that may be relevant for the ICC Court and/or the Secretariat at this stage of the proceedings. However, the Secretariat does not review the Request to determine whether the claimant has met each requirement of the Rules. That will be a matter for the Tribunal, if challenged by the respondent.”