On 17 July 2025, the Court of Appeal handed down judgment in Republic of Korea v Elliott Associates LP [2025] EWCA Civ 905, an appeal brought by Korea in relation to its challenge under section 67 of the Arbitration Act 1996 against an investor-state arbitration award in favour of Elliott under the Korea-US Free Trade Agreement (KORUS).
The Court of Appeal reversed the judgment of Mr Justice Foxton at first instance, who had found as a preliminary point that Korea’s challenge was not one relating to substantive jurisdiction for the purposes of section 30 of the Arbitration Act 1996, such that it was incapable of grounding an application for section 67 relief.
Following a detailed analysis of the relevant provisions of KORUS in accordance with the relevant principles of treaty interpretation set out in Arts 31-32 of the Vienna Convention on the Law of Treaties 1969, the Court found that Article 1(1) (the ‘Scope and Coverage’ clause) created jurisdictional pre-conditions which have to be satisfied in order for there to be an offer to arbitrate, such that section 67 relief is in principle available.
The Court therefore did not need to consider whether to admit an exchange of diplomatic notes between the US and Korea as to the proper interpretation of KORUS on the point (which followed the first instance judgment and disagreed with Mr Justice Foxton’s analysis), or whether it constituted relevant interpretative material under Art 31(3)(a) or (b) VCLT.
The Court therefore referred the case back to the Commercial Court so that it can consider the merits of Korea’s section 67 challenge.
The judgment can be found here.
Samuel Wordsworth KC, Peter Webster and Richard Hoyle appeared on behalf of the Republic of Korea, instructed by Jane Wessel and Charlotte Mallorie of Arnold & Porter in London, and Kevin Kim, Seokchun Yun and Ara Cho of Peter & Kim in Seoul.
