Three Crowns, together with its co-counsel, Kobre & Kim (UK) L.L.P., has once again secured a victory for Elliott Associates L.P. in its dispute against the Republic of Korea under the Korea-US Free Trade Agreement.
On 1 August 2024, the High Court of England and Wales dismissed the Republic of Korea’s application under section 67 of the English Arbitration Act 1996 to set-aside the arbitral award made in Elliott’s favour in June 2023 by a tribunal comprised of Veijo Heiskanen, Oscar Garibaldi, and J Christopher Thomas KC.
In his 28-page judgment, Mr Justice Foxton ruled that the Republic of Korea’s application failed at the threshold, as it did not raise a jurisdictional issue that can give rise to a challenge within the meaning of section 30 of the Act. The Court reaffirmed the distinction between what is properly a jurisdictional issue for purposes of a section 67 challenge under English law and the varying approaches taken by arbitral tribunals to issues of jurisdiction and admissibility under international law. The judgment serves as a clear reminder as to why England continues to be one of the most attractive seats for international arbitration.
Significance
This judgment confirms the limits of the narrow aperture available for a de novo review of a tribunal’s jurisdiction under Section 67 of the Arbitration Act 1996. The judgment also contains an interesting discussion on the possibility of rendering contingent decisions in relation to a matter that will be subject to appeal.
Read the judgment here.
In its June 2023 Award, the tribunal concluded that the Republic of Korea failed to afford to Elliott the minimum standard of treatment under the Korea-US Free Trade Agreement. It found that the actions of the National Pension Service were attributable to the Republic of Korea, notwithstanding that the NPS’s conduct had been in the context of exercising its shareholder rights. The tribunal held that the Republic of Korea is required to pay damages presently totalling more than US$100 million, including costs and interest.
The Three Crowns team undertook the oral advocacy before the High Court, and its team comprised partners Constantine Partasides KC, Georgios Petrochilos KC, Liz Snodgrass, and Simon Consedine, and associates Nicola Peart, YiKang Zhang, Julia Sherman, and Mitchell Hayden-Cook. In the arbitration, Elliott was represented by Three Crowns, Kobre & Kim, and KL Partners.
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