Enforcement of Settlements and Awards Flashcards
WHAT ARE THE BASIC METHODS OF ENFORCING COMPROMISE AGREEMENTS?
Adjudicative procedures
- Tribunal makes an award
- Enforcement is through registering the award with the courts and enforcing it as a civil judgment
- In construction, it’s not registerable. Must bring new court proceedings.
Non-adjudicative procedures
- Enforcement of the agreement contract
- Or convert the agreement into a court judgement or order, and then enforce it
Can the parties sue on the original cause of action after an award?
The original cause of action becomes merged with the award, so the parties can no longer sue on the original cause of action. Except where:
- There is an express term revising old obligations in the event of non-performance
- Compromise is based on performance of the agreed terms
- The compromise is ineffective
How can you challenge a settlement recorded as a contract?
- A settlement can only be set aside in limited circumstances (e.g. fraud or misrepresentation, mutual mistake).
- It is unlikely to be rectified if it was drawn up by lawyers
- Not normally possible to appeal against a consent order, or to vary its terms
- Court may decline to enforce a settlement if there is an equitable reason, or if the other side has breached or repudiated it
- Court may refuse to enforce a consent order for someone who is not abiding by its terms
What can a party do if a settlement court order is not being complied with?
Judgement for immediate payment
Enforcement proceedings can be taken immediately
(i.e. within 14 days)
Judgement for payment, subject to a stay
If instalments fall into arrears, stay will be lifted, and enforcement is immediate
Consent order
If any terms not complied with, enforcement is immediate
Tomlin order
Face terms are enforceable immediately
Where terms in the schedule are breached, first the claim must be restored under the ‘liberty to apply’ clause, and an order obtained to compel compliance with the term. If that order is breached, enforcement then follows in the usual way
Settlement upon terms endorsed on counsel’s briefs
Must issue fresh proceedings
Consent order staying all further proceedings upon agreed terms
Courts unwilling to remove stay. Fresh proceedings needed
Consent order providing for ‘no order’ save as to costs, but setting out the agreed terms in recitals
Can be enforced without need for fresh claim
What about in costs-only proceedings?
Where:
- The parties have reached agreement on all issues, confirmed in writing, but
- They have failed to agree the amount of those costs, and
- No proceedings have been started
Either party may commenced proceedings seeking an order that the compromised costs be determined by the court by assessment or for fixed costs
How are domestic arbitral awards enforced?
- Enforced either by bringing proceedings in the HC, or
- The AA allows the court to grant permission to enforce the award in the same manner as a court order
- Permission is sought in the HC without notice
- Permission will not be given if the other side shows the tribunal lacked jurisdiction to make the award
How are international arbitral awards enforced?
- Must first seek High Court court permission to enforce
- Then enforcement is done through the HC
What are the grounds for refusing enforcement of an NYC award under AA?
If the person against whom it was made proves that:
- A party was under incapacity
- The agreement was not valid in law
- He was not given proper notice of the appointment or was otherwise unable to present his case
- The dispute didn’t come within the terms of the arbitration agreement
- The composition of the tribunal was not in accordance with the parties’ agreement
- The award is not yet binding, is set aside or suspended under the law of the country where it was made
- the dispute is not capable of being arbitrated
- contrary to public policy to enforce the award
