International Arbitration Newsletter - April 2020 | Regional Overview: Asia Pacific

Australia

Australian energy company settles pre-emption disputes

As disclosed by Melbourne-based FAR in a recent stock exchange filing in relation to an award issued by ICC tribunal in February 2020, rejecting FAR’s claim that it held a pre-emption right on a 35% stake in a US$ 4.2 billion oil project in Senegalese deep-water oilfield purchase by Australia’s Woodside Petroleum from ConocoPhillips, the parties have reached settlement to withdraw their claims in the arbitration and to pay their own costs separately.

In 2016, after paying US$ 350 million to acquire a ConocoPhillips subsidiary, Woodside became FAR’s partner in Senegal’s first offshore oil project, which is located 100 kilometers south of Dakar. FAR considered the purchase price “surprisingly low” and declared that it should have been consulted as a partner. Thus in 2017, FAR filed arbitration against the subsidiary now owned by Woodside claiming the unsatisfactory of the pre-emptive rights notice issued by ConocoPhillips advising of the sale of shares as well as the refusal it received for the request to acquire information.

Following a hearing last year, the ICC tribunal found that no pre-emption rights over the sale of shares in a party to the venture was granted in the joint operating agreement and all of FAR’s other claims were allegedly rejected.

South Korea

South Korea faces threat from US individual owner of domestic real estate

On February 3, 2020, a redacted notice of intent disclosed by Korea’s Ministry of Justice indicated that Korea faces threat because of an expropriation claim for damages of US$ 12.8 million launched by a US national under the US-Korea Free Trade Agreement with the reason that the 45-year land restrictions has blocked plans for a sports complex. The US national obtained the US citizenship in 2000 and his/her identity has not been disclosed.

In 1987, the US national inherited a 12,000-square-metre site (Land) in the city of Wonju, east of Seoul, and became its sole owner in 1997. Allegedly, in 1990, part of the Land was expropriated to build a youth center, which imposed 45-year land restrictions on the Land. In 2010, claiming that the Land had not been developed into a park for an “unreasonably long time”, the US national submitted a petition to the Anti-Corruption Civil Rights Commission of Korea (ACCC) to lift the title of “youth center”.

Soon after, a recommendation issued by ACCC indicates that Wonju either compensates the US national for his/her Land or lift land restrictions by 2014. However, despite missing the deadline, Wonju still insisted on proceeding the development of the park. Compensation was discussed by related parties in 2017 and 2018 but failed. Subsequently, a local land committee for Gangwon province, where Wonju is located, determined in 2019 that the Land was expropriated and KRW 4.2 billion (US$ 3.4 million) would be compensated to the US national. The US national received the compensation but was unsatisfied. He/she alleged that the total losses are estimated at KRW 15 billion (US$ 12.8 million), including actual and reinstatement losses, plus interest and expenses. He/she reserved a right to appeal.

Elevator filed claim against South Korea

An UNCITRAL claim has been filed at the Permanent Court of Arbitration (“PCA”) by a Swiss investor,Schindler, against South Korea’s financial authorities  for damages it claims resulted from South Korea´s failure to supervise capital increases between 2013 and 2015 in Hyundai Elevator, a company into which Schindler invested in 2005 to become  the second-largest shareholder. The claim was filed by Schindler based on South Korea’s 2005 investment agreement with Iceland, Liechtenstein and Switzerland.

Schindler requested the Financial Supervisory Service and the Financial Services Commission to investigate “falsity and insufficiency of Hyundai's public announcements about the capital increase” but did not receive a “satisfactory response”. Schindler claims that the purpose of a series of rights offers made by Hyundai Elevator is to enhance the power of Hyun Jeong-eun, its largest shareholder as well as the chairwoman of Hyundai Group.

Malaysia

Gulf subcontractors beat Malaysian building company

As announced in a recent Malaysian stock exchange announcement, Malaysian building company WCT Holding (WCT) has been ordered by an ICC tribunal to pay US$ 35 million compensation to three Gulf subcontractors, Dubai company Trans Gulf International Electro-Mechanical, Powermech Engineering of Qatar and a joint venture company they own (collectively referred to as “Subcontractors”), under a dispute related to the construction for Qatar’s Interior Ministry headquarters in Doha (the Project). Meanwhile, the counterclaim filed by WCT has been rejected.

In 2010, WCT successfully became the contractor for the construction and maintenance of the Project. The Subcontractors were responsible for providing mechanical, electrical and plumbing related works for the Project. In 2016, the completed building was opened. In 2017, the Subcontractors launched an ICC claim for US$ 50 million as owed payment for the Project against WCT Bhd, which is a wholly-owned subsidiary of WCT.

As disclosed by WCT in its filing in Kuala Lumpur, the US$ 35 million compensation ordered by ICC tribunal is composed of US$ 10.6 million for release of retention sums; US$ 6.7 million for return of performance bond monies; US$ 16.7 million due under the subcontract and US$1.8 million in late payment interest. In addition, US$7 million in legal and other costs and US$ 468,830 towards the costs of the ICC arbitration were borne by WCT as well.

WCT said, on the final award, it is currently seeking further legal advice and will consider and weigh all further options available to the group, including challenging the award.