Legal battle continues between South Korea and Westinghouse

21 September 2023

US-based Westinghouse Electric Company has decided to continue its legal battle against South Korean firms despite a US court dismissing its lawsuit. In a statement sent to Yonhap News, David Durham, President of Energy Systems at Westinghouse, said that the company intends to appeal the ruling by the Court for the District of Columbia in Washington.

Westinghouse in October 2022 alleged that Korea’s APR1400 reactors copied the System 80 reactor designed by Combustion Engineering, which was acquired by Westinghouse in 2000. The litigation was a move by Westinghouse to stop the Korean companies from selling reactors to Poland, which was then evaluating offers from Westinghouse, KHNP and France’s EDF to supply its first commercial NPP. Although Westinghouse won that tender from state-owned Polskie Elektrownie Jadrowe for its AP1000 technology, Korea subsequently signed an agreement with a private companies ZE PAK and PGE (Polska Grupa Energetyczna) to supply its APR1400 reactors at another site.

Westinghouse filed the suit to prevent the Korean companies from transferring technical information on reactor designs, which it claims have been licensed by it, to Poland and other countries under a US export control regulation, known as Part 810. This details regulations governing the transfer of technology for development, production or use of nuclear reactors, equipment and materials. Westinghouse insists that the Korean companies are using its technologies and so they need to obtain the approval of the US government before exporting them to a third country.

Westinghouse said KHNP and Kepco needed its support to comply with the Part 810 requirements U S laws restricting nuclear power technology sharing. Under these rules the US Department of Energy must approve the sharing of certain technologies with other countries.

Korea, on the other hand, claimed that, while early development of its reactor technology was supported by Westinghouse, the current models it is seeking to export were developed using its own technologies and are not subject to US restrictions. KHNP says the company has developed original reactor technology over the past 30 years and now owns the intellectual property rights to its nuclear power plant technology.

KHNP filed countersuits claiming that the US Atomic Energy Act grants authority to enforce the law exclusively to the US Attorney General and not to entities seeking to claim rights through litigation.

The Court for the District of Columbia, in dismissing Westinghouse’s suit, accepted the claim by KHNP that a private entity has no authority to sue for the enforcement of the Section 810 of US Federal Regulations. "The court holds that Westinghouse lacks a private cause of action to enforce Part 810 and therefore has failed to state a claim," the ruling said.

However, in his statement, Durham argued that the court had simply ruled that the authority to enforce the regulation lies with the US government, and the decision has no bearing on the ongoing arbitration over the prohibited transfer of Westinghouse’s intellectual property outside the country.

Durham claims that the use of Westinghouse intellectual property outside of Korea is the "principal" dispute between the parties. "The decision has no bearing on the ongoing arbitration proceeding against Kepco/KHNP involving Kepco/KHNP's non-allowed transfer of Westinghouse's intellectual property outside Korea," the statement said, according to Yonhap.

Image: KHNP's headquarters in Gyeongju, North Gyeongsang Province (courtesy of KHNP)

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