| Popis: |
In order to terminate a pending arbitration proceeding by way of a settlement agreement, the parties can basically opt either for a ‘consent award’ (‘award on agreed terms’), or an ‘order for termination’. Under the ICC Rules of Arbitration or the LCIA Arbitration Rules, the parties have the additional possibility to simply inform the respective court that a settlement has been reached, whereupon the arbitral tribunal is discharged and the arbitration proceedings are concluded without any termination order issued. It is up to the parties to decide what best serves their interests. Provided that confidentiality is not a major concern, and enforceability is given priority, which will be the case where the settlement agreement provides for claims that fall due in the future, a consent award will answer these purposes best. While in national (Swiss) arbitration proceedings enforceability of a consent award can be fairly well secured by complying with Art. 33 of the Intercantonal Arbitration Convention, the situation is far more complex in international arbitration proceedings, not least so because the New York Convention of 1958 neither defines the term ‘arbitral award’ nor refers to ‘consent awards’. Gabrielle Nater-Bass, the author of the present article, has compiled the most important requirements to be observed for enhancing the chances that the settlement agreement can be enforced internationally. They are, among others, that the parties opt for a consent award; that the consent award is referred to as ‘award’; that the parties agree on unambiguous and transparent performance obligations; that the parties’ prayers for relief are repeated in the consent award; that a dispute still exists when the arbitral proceedings are initiated; and that the arbitral tribunal has jurisdiction over the subject matter of the settlement. |
