La demanderesse, une société singapourienne, a engagé une procédure d'arbitrage contre une société et sa filiale, toutes deux coréennes, afin de réclamer le paiement en souffrance d'actions qu'elle leur avait vendues. La filiale a été mise en liquidation après le début de l'arbitrage et les parties sont convenues que le nom de la défendresse n° 2 serait remplacé par celui du syndic de faillite nommé par le juge. La convention de cession d'actions (« SPA ») contenait une clause compromissoire (clause 8.7) prévoyant le règlement des différends par un arbitrage à Tokyo soumis au règlement de la CCI et « ayant force obligatoire ». La défenderesse n° 1 ayant contesté la validité de la clause compromissoire, un compromis d'arbitrage a été signé par la demanderesse et la défenderesse n° 1 (« 14 January Arbitration Agreement »). Après avoir confirmé la validité de la clause compromissoire initiale, le tribunal arbitral a examiné la question de sa compétence vis-à-vis de la défenderesse n° 2.

'92. Because [Respondent No. 2] is not a party to the 14 January Arbitration Agreement, the Tribunal's jurisdiction, if any, derives from clause 8.7 of the SPA.

93. [Respondent No. 2] has not provided a detailed submission on jurisdiction. However, its position is set out in various letters it sent to the Secretariat. [Respondent No. 2] states that: 1

Under Korean bankruptcy laws, the bankruptcy court has exclusive jurisdiction over any disputes regarding bankruptcy claims filed against the debtor. Accordingly, given that [Claimant] submitted a proof of claim with the bankruptcy court seeking payment under the stock purchase agreement-apparently the same subject matter of the arbitration proceedings-[Claimant]'s claims against the trustee should be adjudicated in the bankruptcy court.

94. [Respondent No. 2] later states: 2

I would note that the [SPA] upon which [Claimant] relies to bring the arbitration provides for the application of Korean law. Therefore, the determination of whether there is a valid and existing arbitration agreement . . . must be determined under Korean law, including the bankruptcy law.

95. [Respondent No. 2] explains that the arbitration is not a "confirmatory litigation" under Korean law, as had been suggested by [Claimant]. [Respondent No. 2] submitted that confirmatory litigation is a special procedure supervised by the bankruptcy court. [Respondent No. 2] later states: 3

Claimant mischaracterises the nature of "confirmatory litigation" under Korean bankruptcy . . . [its] statements are partly inaccurate, and I request the Secretariat to reject claimant's analysis of Korean law.

. . .

I dispute and deny Claimant's allegation that a confirmatory litigation commenced before the filing of the bankruptcy proceedings is just an action 'related' to the bankruptcy proceedings, and not subject to the Korean courts' jurisdiction. In actuality, the confirmatory litigation commenced prior to the filing are [sic] of the bankruptcy proceedings of the same character as litigation commenced after the filing, except that the prior filed litigation may proceed at a venue different from the court administering the bankruptcy-the court where the initial suit was filed. Under Korean bankruptcy law, the Korean court would have jurisdiction over all matters related to the bankruptcy, including any and all confirmatory litigation. The fact that the trustee, rather than the company, becomes the party to the confirmatory litigation regardless of when such litigation begins indicates that the bankruptcy rules and procedures who [sic] supersede the other rules and procedures.

Claimant merely takes the Korean Court's policy of allowing the litigants to remain at the venue of the action commenced prior to the bankruptcy filing to create a novel but incorrect argument that a confirmatory litigation, (or in this case an arbitration) can proceed outside the bankruptcy process. Claimant's claim against [Respondent No. 2] is no longer arbitrable because the Korean Court has exclusive jurisdiction over such claim under Korean bankruptcy law, and the pre-existing arbitration agreement was extinguished upon the filing of the bankruptcy petition. Since the arbitration agreement of [Respondent No. 2] and Claimant became moot by the bankruptcy process, Claimant's novel argument that the arbitration is a confirmatory litigation is meritless. This arbitration is an entirely separate proceeding outside the Korean bankruptcy process, and is therefore far removed from a true confirmatory litigation under Korean bankruptcy law.

Additionally, I object to Claimant's suggestion that the arbitration would not be moot because [Respondent No. 2] may have undisclosed assets outside Korea. Since one of my duties as a Court-appointed Trustee is to identify and locate all assets of the company I oversee, I believe that I would have the best perspective on the affairs of [Respondent No. 2]. And if there existed undisclosed assets of [Respondent No. 2] outside Korea, those assets should also revert to the bankruptcy estate to be liquidated to satisfy all the claims against [Respondent No. 2].

96. [Respondent No. 2] never denied that the SPA was signed on its behalf. The Claimant contends that it was signed by Mr [A], who is identified as [Respondent No. 2]'s President and CEO. This is the signature that appears to be on the SPA itself. [Claimant] concludes that "therefore, the SPA clearly conferred arbitral jurisdiction as to [Respondent No. 2] when the Request for Arbitration was filed with the ICC on November 3, 2003". 4

97. The Tribunal notes that by [Respondent No. 2] trustee's admission and request, made in his letter of 16 February 2004, he is the correct party to represent [Respondent No. 2] in these proceedings. The Tribunal accepts that as the legal successor of the rights and obligations of the [Respondent No. 2] company, the bankruptcy trustee is prima facie bound by the arbitration clause in the SPA. The Tribunal notes that this is consistent with previous ICC awards provided by the Claimant. 5 It was also specifically agreed to by the Claimant.

98. In response to [Respondent No. 2]'s contention that the Korean Bankruptcy Court has exclusive jurisdiction over claims against [Respondent No. 2], [Claimant] contends that Korean Bankruptcy law has no extra territorial affect [sic] and hence cannot deprive this Tribunal of jurisdiction.

99. This raises two issues for the Tribunal's determination:

(a) Does Korean Bankruptcy law purport to stay foreign arbitration proceedings against a local bankrupt company?

(b) If it does, is it effective in this arbitration?

100. Article 239 of the Korean Code of Civil Procedure provides as follows:

Litigation proceedings relating to the bankrupt estate shall be suspended when a party has been declared bankrupt. In the event that the bankruptcy procedures are terminated before a takeover of the lawsuit pursuant to the Bankruptcy Act takes place, the bankrupt entity shall rightfully take over and continue the litigation proceedings.

101. Articles 3 and 7 of the Korean Bankruptcy Act provide as follows:

Article 3 (Territoriality Principle)

(1) The bankruptcy shall be effective only as to the bankrupt's property in Korea.

(2) Any bankruptcy, which is declared in a foreign country, shall not be effective as to property in Korea.

(3) Any claim entitled to be asserted judicially under the Code of Civil Procedure, shall be considered to exist in Korea.

Article 7 (Administration and Disposal)

The right to the administration and disposal of the bankrupt estate shall belong to the bankruptcy trustee.

102. The Claimant has referred the Tribunal to the Commentary on the Korean Code of Civil Procedure (I) edited by Sang-Won Kim, Woo-Dong Park, Si-Yoon Lee and Jae-Seong Lee. The learned editors state, in chapter one, dealing with the court, that based on the principle of territorial sovereignty, civil jurisdiction cannot be exercised in a foreign territory but can only be exercised within Korea. The Tribunal is satisfied that this commentary accurately states Korean law and that Article 239 of the Korean Code of Civil Procedure does not purport to apply to litigation or arbitration occurring outside Korea. This principle is reinforced by Article 3(1) of the Korean Bankruptcy Act.

103. There is another reason why Article 239 of the Korean Code of Civil Procedure does not affect this arbitration. Article 239 appears to be a procedural provision relating to the continuation of judicial proceedings. It is not, in the Tribunal's judgment, a substantive provision dealing with contractual rights. While the substantive rights of the parties are governed by Korean law, pursuant to clause 8.5 of the SPA, the suspension of proceedings is arguably a matter governed by the lex arbitri, which the Tribunal considers is the law of the place of the arbitration, Japan. See Redfern and Hunter, Law and Practice of International Commercial Arbitration (3rd ed. 1999) pp. 81-83. No arguments were put to the Tribunal based on Japanese law.'

1
Letter of . . . to the Secretariat of the ICC Court.

2
Letter of . . . to the Secretariat of the ICC Court.

3
Letter to the Secretariat of the ICC court dated . . .

4
Claimant's Opening Submission on Jurisdiction . . .

5
ICC Case 7337/1996, Collection of ICC Arbitral Awards, 1996-2000, pages 312-313.