A guide to the UPC and the UP - Flipbook - Page 471
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The parties agree to resolve their dispute by mediation or arbitration at the Centre. This is
similar to the point above. However, here the parties are not in an ongoing contractual
relationship but enter into a submission agreement that their dispute should be settled
at the Centre.
What are the Possible Outcomes of the Parties using the Centre?
22-55 There are several possible outcomes of the parties using the Centre and the outcome will
depend on which route the parties took in order to use the Centre.
22-56 If the parties are using the Centre to explore settlement of an ongoing dispute before the Court,
the case will either be:
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Settled by way of mediation or arbitral award by consent;
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Decided by arbitral award; or
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Returned to the Court following a failure to reach a settlement by mediation.
Where the parties fail to reach a settlement by mediation, there is also the possibility
of the dispute going to arbitration instead. This decision may be driven by factors such
as confidentiality, cost or speed. However, until the Centre’s arbitration rules have been
published, it is not possible to know what the mechanisms will be for cases going from
mediation to arbitration.
22-57 If the parties are not in litigation before the Court but are instead using the facilities of the
Centre by agreement, the dispute resolution clause in the pre-existing contract or the
submission agreement will set out the procedure, generally by reference to the rules of the
Centre once these are published. If the dispute resolution clause or submission agreement
states that the parties will resolve their dispute by arbitration at the Centre, this will be binding
and the outcome of the arbitration will be that the dispute is resolved by this method. However,
if the dispute resolution clause or submission agreement states that the parties will attempt to
resolve their dispute by mediation at the Centre, the clause should also contain a fall back
should no agreement be reached. This could be either arbitration, expert determination or
litigation. In the absence of such a fall back, the parties would either be free to commence
litigation or enter into a further agreement to arbitrate or use expert determination.
22-58 If a settlement is reached by mediation at the Centre, it can be expected that the mediation
rules once published will provide that the terms of the settlement may be confirmed by a
decision of the Court for the purposes of enforcement. This appears to be the case regardless
of whether or not there are ongoing proceedings before the Court. It also seems likely that the
arbitration rules once published will contain a similar provision in relation to arbitral awards by
consent, given that r.11(2) RoP requires that arbitral awards by consent be confirmed by a
decision of the Court. 69
Specific Issues as to Arbitration at the Centre
22-59 As previously noted, no rules for arbitrations operated under the auspices of the Centre
have as yet been published, and thus the following comments relate only to the relationship
of arbitration to the Court, the extent to which infringement and validity can be determined
by an arbitral tribunal and the enforcement of arbitral awards.
69
For a general discussion on the process of confirmation of a settlement by way of a decision of the Court,
see paragraph 22-17.
© Bird & Bird LLP | May 2023
A Guide to the UPC and the UP 461
