National Oilwell Varco Norway AS v Keppel FELS: Enforcing Arbitration Awards Despite Misnomer
The Singapore Court of Appeal heard an appeal by National Oilwell Varco Norway AS (NOV Norway) against Keppel FELS Ltd (KFELS) regarding the enforcement of an arbitration award issued in the name of A/S Hydralift (Hydralift), a company that no longer existed due to mergers. NOV Norway, as the successor to Hydralift, sought to enforce the award, while KFELS argued that the award was issued to a non-existent entity. The Court of Appeal allowed the appeal, holding that the mergers resulted in NOV Norway being the same legal entity as Hydralift, and the use of Hydralift's name was a mere misnomer. The court found that an arbitration agreement existed between NOV Norway and KFELS and that NOV Norway was not estopped from enforcing the award.
1. Case Overview
1.1 Court
Court of Appeal of the Republic of Singapore1.2 Outcome
Appeal Allowed
1.3 Case Type
Civil
1.4 Judgment Type
Judgment
1.5 Jurisdiction
Singapore
1.6 Description
Singapore Court of Appeal allows enforcement of an arbitration award, clarifying misnomer rules and corporate mergers' impact on enforcement.
1.7 Decision Date
2. Parties and Outcomes
| Party Name | Role | Type | Outcome | Outcome Type | Counsels |
|---|---|---|---|---|---|
| National Oilwell Varco Norway AS (formerly known as Hydralift AS) | Appellant | Corporation | Appeal Allowed | Won | |
| Keppel FELS Ltd (formerly known as Far East Levingston Shipbuilding Ltd) | Respondent | Corporation | Appeal Dismissed | Lost |
3. Judges
| Judge Name | Title | Delivered Judgment |
|---|---|---|
| Sundaresh Menon | Chief Justice | Yes |
| Judith Prakash | Justice of the Court of Appeal | No |
| Quentin Loh | Judge of the Appellate Division | No |
4. Counsels
4. Facts
- KFELS and Hydralift entered into a contract in 1996 for the design and supply of a turret bearing system.
- A dispute arose between KFELS and Hydralift in 1999 regarding alleged defects.
- KFELS commenced arbitration against Hydralift in 2007.
- Hydralift was no longer in existence at the time of the arbitration due to mergers in 2004.
- NOV Norway defended the claim and mounted a counterclaim in the name of Hydralift.
- NOV Norway did not disclose the mergers to KFELS.
- The Tribunal issued an award in 2019 dismissing KFELS' claim and allowing Hydralift's counterclaim.
5. Formal Citations
- National Oilwell Varco Norway AS (formerly known as Hydralift AS) v Keppel FELS Ltd (formerly known as Far East Levingston Shipbuilding Ltd), Civil Appeal No 188 of 2020, [2022] SGCA 24
6. Timeline
| Date | Event |
|---|---|
| Contract signed between KFELS and Hydralift for design and supply of turret bearing system. | |
| Dispute arose between KFELS and Hydralift regarding alleged defects. | |
| Hydralift became a wholly-owned subsidiary of National Oilwell-Hydralift AS (NOH). | |
| Hydralift merged with NOH and was struck off the Norwegian register of companies. | |
| NOH merged with National Oilwell Norway AS (predecessor of NOV Norway). | |
| KFELS commenced arbitration against Hydralift. | |
| Arbitral tribunal constituted. | |
| National Oilwell Norway AS changed its name to NOV Norway. | |
| KFELS filed three originating summonses to remove members of the Tribunal. | |
| KFELS filed originating summons seeking leave to appeal against dismissal of application. | |
| Tribunal issued the Award, dismissing KFELS' claim and allowing Hydralift's counterclaim. | |
| ORC 462 issued granting leave for NOV Norway to enforce the Award. | |
| KFELS filed SUM 495 to set aside ORC 462. | |
| Parties heard in Court of Appeal. | |
| Judgment reserved. |
7. Legal Issues
- Enforcement of Arbitral Awards
- Outcome: The court held that it has the power to enforce an arbitral award in a misnomer situation and that the mechanical approach to enforcement does not prevent the court from giving effect to the substance of the award.
- Category: Substantive
- Sub-Issues:
- Misnomer
- Mechanical approach to enforcement
- Effect of corporate mergers on enforcement
- Estoppel by Representation
- Outcome: The court held that NOV Norway was not estopped by its representations from denying that the respondent in the arbitration was Hydralift because KFELS did not suffer detrimental reliance.
- Category: Substantive
- Sub-Issues:
- Detrimental reliance
- Representation of fact
- Effect of Mergers under Norwegian Law
- Outcome: The court held that the effect of the 2004 mergers under Norwegian law was that the legal personality of Hydralift continued to survive and was subsumed in that of NOV Norway.
- Category: Substantive
- Sub-Issues:
- Succession of legal identity
- Transfer of assets, rights, and liabilities
- Interpretation of Contractual Clauses
- Outcome: The court held that cl 21.1 of the Contract did not prohibit the transfer or transmission of Hydralift’s rights under the arbitration agreement to NOV Norway through the 2004 mergers.
- Category: Substantive
- Sub-Issues:
- Anti-assignment clauses
- Transfer of rights upon merger
8. Remedies Sought
- Enforcement of Arbitral Award
- Setting aside leave to enforce
9. Cause of Actions
- Breach of Contract
10. Practice Areas
- Arbitration
- Commercial Litigation
11. Industries
- Construction
- Oil and Gas
12. Cited Cases
| Case Name | Court | Affirmed | Citation | Jurisdiction | Significance |
|---|---|---|---|---|---|
| Aloe Vera of America, Inc v Asianic Food (S) Pte Ltd | High Court | Yes | [2006] 3 SLR(R) 174 | Singapore | Cited for the principle that the court undertakes a largely formalistic examination when an application for leave to enforce an award is made ex parte. |
| National Oilwell Varco Norway AS (formerly known as Hydralift AS) v Keppel FELS Ltd (formerly known as Far East Levingston Shipbuilding Ltd) | High Court | Yes | [2021] SGHC 124 | Singapore | The High Court decision that was appealed against in the current judgment. |
| JX Holdings Inc and another v Singapore Airlines Ltd | High Court | Yes | [2016] 5 SLR 988 | Singapore | Cited for the principle that the status of corporations is determined by the law of the place of incorporation and for explaining different forms of mergers. |
| National Bank of Greece and Athens SA v Metliss | House of Lords | Yes | [1958] AC 509 | United Kingdom | Cited for the explanation of universal succession. |
| Centro Latino Americano de Commercio Exterior SA v Owners of the Ship ‘Kommunar’ (The ‘Kommunar’ (No 2)) | English High Court | Yes | [1997] 1 Lloyd’s Rep 8 | United Kingdom | Cited to clarify the nature of the doctrine of universal succession and the requirement of continuity of legal personality. |
| Norsk Idekjop AS v Sandberg AS | Norwegian Supreme Court Appellate Committee | Yes | Norsk Idekjop AS v Sandberg AS (10 October 2002, SC) (Norway) | Norway | Cited for the proposition that in legal proceedings where the claimant had been dissolved following a merger, Norwegian law recognises that the claimant’s name could be rectified and substituted by the transferee’s name. |
| China Sunergy Co Ltd v REC Wafer Norway AS and Nordea Bank Norge ASA | Norwegian Supreme Court Appellate Committee | Yes | China Sunergy Co Ltd v REC Wafer Norway AS and Nordea Bank Norge ASA (15 July 2010, SC) (Norway) | Norway | Cited for the principle that a breach of a prohibition of transfer will not result in the termination of the liability in relation to transfer of obligations. |
| A v B | English High Court | Yes | [2017] 1 WLR 2030 | United Kingdom | Cited for the principle that Singapore law does not consider a transfer that occurs in circumstances of a merger to be an assignment. |
| Tjelle Eiendom AS v Astero AS | Norwegian Supreme Court | Yes | Tjelle Eiendom AS v Astero AS (31 August 2017, SC) (Norway) | Norway | Cited by KFELS to argue that the specific basis requirement does not apply to cl 21.1 of the Contract. |
| Norsk Hydro ASA v State Property Fund of Ukraine and others | English High Court | Yes | [2002] EWHC 2120 (Comm) | United Kingdom | Discussed in relation to the mechanical approach to enforcement of arbitral awards and distinguished as not being a true misnomer situation. |
| International Movie Group Inc and The Movie Group Inc v Palace Entertainment Corporation Pty Ltd | Supreme Court of Victoria | Yes | (7 July 1995, SC) (Vic) | Australia | Cited as an example of a misnomer situation where the court allowed enforcement of an award after accepting that the references to other entities were misnomers for the defendant. |
| International Movie Group Inc & Anor v Palace Entertainment Corporation Pty Ltd | Supreme Court of Victoria | Yes | [1995] 128 FLR 458 | Australia | Cited as an example of a misnomer situation where the court allowed amendment to the originating motion to identify the correct plaintiff. |
| A Consortium Comprising TPL and ICB v AE Ltd | Hong Kong Court of First Instance | Yes | [2021] HKCFI 2341 | Hong Kong | Cited as an example of a misnomer situation where the court allowed leave to amend the application to allow the individual entities of a consortium to be joined as applicants and granted leave to enforce the awards. |
| SEB Trygg Liv Holding AB v Manches and others | English Court of Appeal | Yes | [2006] 1 WLR 2276 | United Kingdom | Cited for the test for identifying a misnomer and the principle that the court should consider who would reasonably have been understood by the party against whom the claim was asserted to be the entity bringing the claim. |
| SEB Trygg Holding Aktiebolag v Manches | English High Court | Yes | [2005] EWHC 35 (Comm) | United Kingdom | Cited for the principle that if it was a case of a true misnomer, the proceedings would nonetheless be validly constituted and the record could even be corrected by the court. |
| The Sardinia Sulcis | Court of Appeal | Yes | [1991] 1 Lloyd’s Rep 201 | United Kingdom | Cited for the proposition that in cases of misnomer, even where the name on the record refers to an entity which no longer exists, the court can correct the record and the proceedings are correctly constituted ab initio. |
| Stansell Ltd and another v Co-operative Group (CWS) Ltd | English Court of Appeal | Yes | [2006] 1 WLR 1704 | United Kingdom | Cited by KFELS to argue that the word “assign” in an anti-assignment clause connoted “an inter vivos disposition by one party in favour of another as an act of their joint volition”. |
| Yokogawa Engineering Asia Pte Ltd v Transtel Engineering Pte Ltd | Court of Appeal | Yes | [2009] 2 SLR(R) 532 | Singapore | Cited for the three elements of estoppel by representation: a representation of fact, reliance on the representation and detriment caused by such reliance. |
| Tacplas Property Services Pte Ltd v Lee Peter Michael (administrator of the estate of Lee Ching Miow, deceased) | Court of Appeal | Yes | [2000] 1 SLR(R) 159 | Singapore | Cited for the consideration of detrimental reliance in estoppel by representation. |
13. Applicable Rules
| Rule Name |
|---|
| Rules of Court (2014 Rev Ed) O 69A r 6(1) |
14. Applicable Statutes
| Statute Name | Jurisdiction |
|---|---|
| International Arbitration Act (Cap 143A, 2002 Rev Ed) | Singapore |
| Companies Act 1967 (2020 Rev Ed) | Singapore |
| Norwegian Private Limited Liability Companies Act (Act of 13 June 1997 No. 44) | Norway |
15. Key Terms and Keywords
15.1 Key Terms
- Arbitration
- Enforcement
- Misnomer
- Merger
- Universal Succession
- Estoppel
- Detrimental Reliance
- Mechanical Approach
- Legal Personality
- Assignment
15.2 Keywords
- arbitration
- enforcement
- misnomer
- merger
- Keppel FELS
- National Oilwell Varco
- Hydralift
17. Areas of Law
| Area Name | Relevance Score |
|---|---|
| Arbitration | 95 |
| Misnomer | 70 |
| International Arbitration Act | 65 |
| Enforcement of Foreign Judgments | 60 |
| Contract Law | 50 |
| Estoppel | 40 |
| Company Law | 30 |
| Mergers and Acquisitions | 25 |
16. Subjects
- Arbitration
- Company Law
- Contract Law
- Civil Procedure