A guide to the UPC and the UP - Flipbook - Page 468
22-43 Should the issue of a dispute arise in relation to an oral settlement agreement of a dispute
before the Court, it is unclear that the Court will have competence to hear it. The limited
matters over which the Court has competence do not include contractual disputes, 53 except for
two limited exceptions. 54 Therefore, the question of which court would have competence over
such a dispute would be an issue of private international law, as the parties might well in a
simple settlement not have agreed on governing law or jurisdiction. 55
Enforcement of a Settlement Agreement
22-44 Generally, the remedy for breaching any term of a settlement agreement will be by bringing
proceedings for breach of contract. These proceedings would be brought in line with any
dispute resolution clause in the settlement agreement, which will specify which court or
arbitration rules will be used to determine any disputes under the agreement. The usual
defences available under the governing law of the agreement will also apply.
Enforcement of Settlement Agreements by the Court
22-45 It is clear that one objective of the Court is to make enforcement of settlements easier, by
allowing the parties to request that the terms of a settlement agreement may be confirmed
by a decision of the Court. 56 If the settlement decision contains the terms of the settlement
agreement, the terms of the settlement will be enforceable as a decision of the Court, rather
than purely contractually. 57 Therefore, all the factors relating to enforcement of a Court
decision apply. 58 In addition, the parties can also request that the Court orders these terms
to be confidential. 59 It appears likely that this may allow the parties to enforce the terms of a
settlement agreement as a decision of the Court while also maintaining the confidentiality of
the terms of the settlement.
22-46 In addition, art.35(2) UPCA, which sets out that the provisions relating to enforcement of
Court decisions, 60 also applies in respect of cases settled using the facilities of the Centre.
This is further elaborated in r.11(2) RoP. As a result, the ability to enforce a settlement by way
of a decision of the Court will extend to settlement of any proceedings which are ongoing
before the Court, including where settlement has been achieved by way of mediation or by
arbitral award by consent.
22-47 Where the Court’s settlement decision does not contain the terms of the settlement, any
enforcement of the terms will only be by way of contractual enforcement. Therefore, any
dispute as to the terms of the settlement will be a contractual dispute, for which the Court
will only have jurisdiction in limited circumstances. Given the obvious complexities this may
cause in relation to enforcement, it seems likely that parties with the benefit of obligations
under a settlement agreement will want a decision of the Court confirming at least some of
the terms of the settlement.
53
54
55
56
57
58
59
60
art.32(1) UPCA.
art.32(1)(a) and (h).
For a more detailed discussion of the Court’s competence to hear disputes relating to settlement agreements, see paragraphs
22-48 to 22-49.
r.11(2) RoP.
r.365(1) RoP.
For further details on enforcement of decisions of the Court, see chapter 19 (Enforcement).
r.365(2) RoP.
art.82 UPCA shall apply mutatis mutandis.
© Bird & Bird LLP | May 2023
A Guide to the UPC and the UP 458
