Summary

INTRODUCTION

This is a challenge brought by the Claimant ("Korea") under s.67 of Arbitration Act 1996 ("the 1996 Act") to set aside a final award dated 20 June 2023 ("the Award") rendered in an arbitration between Korea and Elliott Associates, LP ("EALP").

In a judgment handed down on 1 August 2024, I held that Korea's challenge did not raise a jurisdictional question and dismissed it without addressing the merits ([2024] EWHC 2037 (Comm)). That decision was overturned by the Court of Appeal ([2025] EWCA Civ 905) who remitted the challenge back to me.

The issue which arises at this hearing is whether what has been found to be the jurisdictional requirement established by the following term of the USA-Korea Free Trade Agreement ("the Treaty") is satisfied in relation to the Award:

"This Chapter applies to measures adopted or maintained by a Party relating to:

(a) investors of the other Party;

(b) covered investments; and

(c) with respect to Articles 11.8 and 11.10, all investments in the territory of the Party."

That in turn requires the court to determine the following issues:

i) Whether the actions of which complaint is made constitute "measures";

ii) If so, whether those were "measures adopted or maintained" by Korea; and

iii) If so, whether those measures "relate to" EALP and its investment.

It is the second of those issues which is the most challenging and to which the majority of argument was devoted.

...

CONCLUSION

For these reasons, Korea's s.67 challenge succeeds to the extent set out above. I have reached this conclusion with reluctance, not least because EALP advanced its case by reference to Article 11.1(3) of the Treaty in the arbitration on a basis which did not depend on the acts of the NPS themselves constituting measures adopted or maintained by a Party, and it may well be entitled to the same relief on the basis of its case concerning the Blue House Measures (over which I have found the Tribunal did have jurisdiction), just as the Mason claimants were.

With some diffidence, and with the inestimable advantage of hindsight, I would tentatively suggest that the present case illustrates the benefit, when alternative bases of establishing jurisdiction are argued and established, of reaching findings of breach, causation and loss which can clearly stand even if one of those bases is later successfully challenged before a supervisory or enforcement court.