A guide to the UPC and the UP - Flipbook - Page 462
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Confirmation by the Court of a settlement: 18 In the next section, the procedure for
confirmation of a settlement agreement by the Court, including what impact this has
on enforcement of an agreement and the interplay between confidentiality and the
confirmation procedure, is considered;
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Terms and binding effect of a settlement agreement: 19 Points relating to the formalities
required to make a settlement binding including factors such as governing law and
execution of a settlement agreement are addressed together with a discussion of
terms that may not be binding; and
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Enforcement of a settlement agreement: 20 The way in which a settlement agreement may
be enforced and factors that may influence the enforcement are discussed. This section
also considers the Court’s competence to hear disputes relating to settlement agreements
and their terms.
22-16 These factors are the only ones that are apparently based on the UPCA and the RoP. However,
it is likely that over time, as the Court case law develops, there may be additional factors that
will need to be considered when drafting a settlement agreement. What is clear at this stage is
that the RoP will allow the Court to construe the definition of settlement widely, as the Court’s
power to confirm the settlement by way of a decision extends to include arbitral awards made
by consent, irrespective of whether they are reached by using the facilities of the Centre. 21
Confirmation by the Court of a Settlement Agreement
22-17 If the parties to a dispute before the Court agree a settlement, they may request that the Court
confirms the terms of a settlement by way of a decision. 22 Art.79 UPCA provides that parties
may conclude their case by way of settlement, which shall be confirmed by a decision of the
Court. It seems obvious that this wording is not intended to limit the parties’ right to conclude
any action in however manner they choose, including by way of a settlement agreement after
which, the parties simply withdraw the action. Therefore, art.79 UPCA seems to apply only
where the parties want or need a confirmation by Court order, for instance because the
settlement includes provisions for which enforceability by way of a Court order is either
desirable or necessary.
Options for Confirmation by the Court
22-18 An interesting aspect of this procedure is that the confirmatory decision may, or may not,
contain the terms of the settlement, at the request of the parties. 23 This provision was amended
during the drafting of the RoP as the original draft made it mandatory for the Court to confirm
the terms of all settlements. However, it was recognised that the parties may wish to keep the
terms of any settlement confidential. Therefore, the draft RoP were amended so that the Court
shall only confirm the terms of the settlement (as opposed to the fact of a settlement having
occurred) if specifically requested to do so by the parties. Given the fact that the parties are
only likely to pursue this procedure where they wish to make the settlement enforceable as a
Court order, it seems logical that at least that part of the settlement will be submitted (albeit
that the parties may make a request that such terms are maintained confidential), 24 as it will
not be possible for the Court to enforce a term without having knowledge of it.
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19
20
21
22
23
24
See paragraphs 22-17 to 22-26.
See paragraphs 22-27 to 22-40.
See paragraphs 22-44 to 22-49.
r.11(2) RoP.
r.11(2) RoP.
art.79 UPCA and rr.11(2) and 365(1) RoP.
r.365(2) RoP.
© Bird & Bird LLP | May 2023
A Guide to the UPC and the UP 452
