NOTES ON ALTERNATIVE DISPUTE RESOLUTION
Kenneth & King Hizon (3A)
_____________________________________________
UNIVERSITY OF SANTO TOMAS
Faculty of Civil Law
A.Y. 2012-2013
First Semester
ALTERNATIVE DISPUTE RESOLUTION
Republic Act No. 9285
AN ACT TO INSTITUTIONALIZE THE USE OF AN ALTERNATIVE
DISPUTE RESOLUTION SYSTEM IN THE PHILIPPINES AND TO
ESTABLISH THE OFFICE FOR ALTERNATIVE DISPUTE
RESOLUTION, AND FOR OTHER PURPOSES
STRATE POLICY
Q: What is the policy of the State in ADR?
A: It is hereby declared the policy of the State to actively
promote party autonomy in the resolution of disputes or the
freedom of the party to make their own arrangements to
resolve their disputes. Towards this end, the State shall
encourage and actively promote the use of Alternative
Dispute Resolution (ADR) as an important means to achieve
speedy and impartial justice and declog court dockets.
Q: What if the parties into a contract stipulating therein that
in the event of dispute arising from the same contract, they
are going to refer the case to the RTC of Manila. Are they
proper subjects of ADR?
A: No. The dispute to be covered by the ADR must be
resolved by an impartial third party who is neither a judge nor
an agent of the government. If it is the court that resolves the
dispute, such resolution is excluded in the ADR.
Q: A and B entered into an agreement that in the event of
dispute, they will resolve the controversy through
arbitration. There was a breach of contract. Suppose the
parties invoked their agreement, what will the court do?
A:
Q: What is the Constitutional basis of ADR?
1.
2.
A:
3.
ARTICLE XIII
LABOR
The Court shall suspend the proceedings
The court shall direct the parties to go to ADR on the
basis of their contract or agreement
After the proceedings in the ADR and after rendering
of award, the arbitrator shall not refer the award to
the court for the parties to comply
Q: What is the nature of proceedings under ADR?
Section 3. XXX The State shall promote the principle of shared
responsibility between workers and employers and the
preferential use of voluntary modes in settling disputes, including
conciliation, and shall enforce their mutual compliance therewith
to foster industrial peace.
NOTE: The employers and employees are encouraged to go
ADR under the Constitution for the purpose of obtaining
industrial peace.
Q: What is the legal basis of ADR? Give the Civil Code
provision.
A:
Art. 1306. The contracting parties may establish such
stipulations, clauses, terms and conditions as they may
deem convenient, provided they are not contrary to law,
morals, good customs, public order, or public policy. (1255a)
A: All proceedings under special proceedings.
DEFINITION OF TERMS AND CONCEPTS
Q: What is Alternative Dispute Resolution (ADR)?
A: It means any process or procedure used to resolve a
dispute or controversy, other than by adjudication of a
presiding judge of a court or an officer of a government
agency in which a neutral third party participates to assist in
the resolution of issues, which includes arbitration,
mediation, conciliation, early neutral evaluation, mini-trial, or
any combination thereof.
Q: Who is an ADR provider?
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NOTES ON ALTERNATIVE DISPUTE RESOLUTION
Kenneth & King Hizon (3A)
A: It means institutions or persons accredited as mediator,
conciliator, arbitrator, neutral evaluator, or any person
exercising similar functions in any Alternative Dispute
Resolution system.
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A: Any information, relative to the subject of mediation or
arbitration, expressly intended by the source not to be
disclosed, or obtained under circumstances that would create
a reasonable expectation on behalf of the source that the
information shall not be disclosed.
NOTE: The parties are given the right to chose non-accredited
individuals to act as mediator, conciliator, arbitrator, or
neutral evaluator of their dispute.
Q: What is
information?”
Q: Who is an ADR Practitioner?
A: It shall include:
A: It shall refer to individuals acting as mediator, conciliator,
arbitrator or neutral evaluator.
in
the
phrase
“confidential
(1) communication, oral or written, made in a dispute
resolution proceedings, including any memoranda,
notes or work product of the neutral party or nonparty participant;
(2) an oral or written statement made or which occurs
during mediation or for purposes of considering,
conducting, participating, initiating, continuing of
reconvening mediation or retaining a mediator; and
(3) Pleadings,
motions
manifestations,
witness
statements, reports filed or submitted in an
arbitration or for expert evaluation.
Q: In what ways, ADR is implemented?
A:
1.
2.
3.
4.
included
Arbitration
Mediation or conciliation
Mini-trial
Early Neutral Evaluation
Q: What is arbitration?
Q: What is Court-Annexed Mediation?
A: Arbitration means a voluntary dispute resolution process
in which one or more arbitrators, appointed in accordance
with the agreement of the parties, or rules promulgated
pursuant to ADR Act of 2004, resolve a dispute by rendering
an award.
A: It means any mediation process conducted under the
auspices of the court, after such court has acquired
jurisdiction of the dispute.
Q: What are the purposes of a court-annexed mediation?
Q: Who determines/chooses the particular way to be
utilized in resolving a dispute through the ADR?
A: The parties can implement the kind of dispute resolution
that they would like to avail of.
A:
1.
2.
3.
4.
To unclog the docket of the court
To shorten the proceedings
To help in the evaluation of elements
To bring the parties into a settlement
Q: Who is an arbitrator?
Illustration:
A: Arbitrator means the person appointed to render an
award, alone or with others, in a dispute that is the subject of
an arbitration agreement.
Q: What is an award?
A: It means any partial or final decision by an arbitrator in
resolving the issue in a controversy.
Q: When is arbitration considered as commercial?
A: An arbitration is "commercial” if it covers matter arising
from all relationships of a commercial nature, whether
contractual or not.
Q: There is a court proceeding between A and B with regard
the accounting claim of A to B. Can the court direct the
parties to go to ADR in order to determine whether or not
the particular amount being claimed by A is correct?
A: In such case, the court may refer the parties. Since the
court will have to determine the actual amount which the
parties owe to each other, the court can direct the parties to
go to mediation to an annex court. The judge in such case will
be the judge of an annex court who is not the same judge
with whom the case was first filed. The 2 courts in such case
belongs to the same category or equal level.
Q: What is Court-Referred Mediation?
Q: Give the rule as regards the confidentiality of information
with regard to arbitration or mediation.
A: It means mediation ordered by a court to be conducted in
accordance with the Agreement of the Parties when as
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NOTES ON ALTERNATIVE DISPUTE RESOLUTION
Kenneth & King Hizon (3A)
action is prematurely commenced in violation of such
agreement.
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A:
(a) labor disputes covered by Presidential Decree No.
442, otherwise known as the Labor Code of the
Philippines, as amended and its Implementing Rules
and Regulations;
(b) the civil status of persons;
(c) the validity of a marriage;
(d) any ground for legal separation;
(e) the jurisdiction of courts;
(f) future legitime;
(g) criminal liability; and
(h) those which by law cannot be compromised.
(i) Adoption (added by Atty. Palacios)
Q: What is Early Neutral Evaluation?
A: It means an ADR process wherein parties and their lawyers
are brought together in an early in a pre-trial phase to
present summaries of their cases and receive a nonbinding
assessment by an experienced, neutral person, with expertise
in the subject in the substance of the dispute.
Q: What is Mediation?
A: It means a voluntary process in which a mediator, selected
by the disputing parties, facilitates communication and
negotiation, and assist the parties in reaching a voluntary
agreement regarding a dispute.
MEDIATION
Q: Who is a Mediator?
CONDIDENTIALITY OF INFORMATION
A: It means a person who conducts mediation.
Q: What is Mini-Trial?
A: It means a structured dispute resolution method in which
the merits of a case are argued before a panel comprising
senior decision makers with or without the presence of a
neutral third person after which the parties seek a negotiated
settlement.
Information obtained through mediation shall be privileged
and confidential. A party, a mediator, or a nonparty
participant may refuse to disclose and may prevent any other
person from disclosing a mediation communication.
GENERAL RULE (Section 9)
Information obtained through mediation proceedings shall be
subject to the following principles and guidelines:
Q: What is the difference between mini-trial and early
neutral evaluation?
(a) Information obtained through mediation shall be
privileged and confidential.
(b) A party, a mediator, or a nonparty participant may
refuse to disclose and may prevent any other
person
from
disclosing
a
mediation
communication.
A:
MINI-TRIAL
There is a decision and from
that decision the parties are
compelled to go a mediated
agreement. It will result in
the termination of the
mediation, hence, binding.
EARLY NEUTRAL
EVALUATION
The resolution is merely an
advice; the parties may take
such resolution or not,
hence, not binding
Q: May the modes of discovery under the rules of court be
availed of to obtain information disclosed in mediation
proceedings?
A:
(c) Confidential Information shall not be subject to
discovery and shall be inadmissible if any
adversarial proceeding, whether judicial or quasijudicial, However, evidence or information that is
otherwise admissible or subject to discovery does
not become inadmissible or protected from
discovery solely by reason of its use in a mediation.
Q: Who is a non-party participant?
A: It means a person other than a party or mediator, who
participates in a mediation proceeding as a witness, resource
person or expert.
EXCEPTION TO THE APPLICATION OF THE ADR LAW
Q: What are the cases not covered by ADR?
A: The following cases are not covered by ADR?
Q: Who are the parties covered by the confidentiality rule?
A:
(d) In such an adversarial proceeding, the following
persons involved or previously involved in a
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UNIVERSITY OF SANTO TOMAS
NOTES ON ALTERNATIVE DISPUTE RESOLUTION
Kenneth & King Hizon (3A)
mediation may not be compelled to disclose
confidential information obtained during mediation:
(1)
(2)
(3)
(4)
(5)
the parties to the dispute;
the mediator or mediators;
the counsel for the parties;
the nonparty participants;
any persons hired or engaged in connection
with the mediation as secretary, stenographer,
clerk or assistant; and
(6) any other person who obtains or possesses
confidential information by reason of his/her
profession.
Q: There is an on-going mediation proceedings, as a
consequence of that proceedings, a party filed a case in
court which involve the same issue, same parties that is the
subject of mediation. Then the parties subpoenaed the
mediator as a witness to testify about the mediation
proceedings, can the mediator testify?
_____________________________________________
presentation of evidence that is privileged. Suppose the
court did not sustain the objection, and allow the mediator
to continue his testimony, what will be the aggrieved party’s
recourse?
A: The court may allow the party the right to respond and
repudiate whatever testimony that was given by the
mediator (right to rebut or counter-testimony). He may also
file an action for damages.
EXCEPTIONS
(a) There is no privilege against disclosure under Section 9 if
mediation communication is:
a.
b.
c.
A: No
d.
Q: Can the mediator voluntarily testify?
A: No, because such situation will violate the rules on
confidentiality
e.
Q: Can this privilege arising from the confidentiality of
information in mediation proceedings be waived?
A: Yes. A privilege arising from the confidentiality of
information may be waived in a record, or orally during a
proceeding by the mediator and the mediation parties. A
privilege arising from the confidentiality of information may
likewise be waived by a nonparty participant if the
information is provided by such nonparty participant.
XPN to the XPN: This exception does not apply
where a child protection matter is referred to
mediation by a court or a public agency
participates in the child protection mediation;
f.
Q: What is the consequence of disclosure of such
confidential information by the parties covered by the rule?
g.
A: A person who discloses confidential information shall be
precluded from asserting the privilege to bar disclosure of
the rest of the information necessary to a complete
understanding of the previously disclosed information. If a
person suffers loss or damages in a judicial proceeding
against the person who made the disclosure.
A person who discloses or makes a representation about a
mediation is precluded from asserting the privilege to the
extent that the communication prejudices another person in
the proceeding and it is necessary for the person prejudiced
to respond to the representation of disclosure.
Q: The rule is that if a party has been prejudiced in that
situation, the recourse will be an objection as to the
in an agreement evidenced by a record
authenticated by all parties to the agreement;
available to the public or that is made during a
session of a mediation which is open, or is
required by law to be open, to the public;
a threat or statement of a plan to inflict bodily
injury or commit a crime of violence;
internationally used to plan a crime, attempt to
commit, or commit a crime, or conceal an
ongoing crime or criminal activity;
sought or offered to prove or disprove abuse,
neglect, abandonment, or exploitation in a
proceeding in which a public agency is
protecting the interest of an individual
protected by law;
sought or offered to prove or disprove a claim or
complaint of professional misconduct or
malpractice filed against mediator in a
proceeding; or
sought or offered to prove or disprove a claim of
complaint of professional misconduct of
malpractice filed against a party, nonparty
participant, or representative of a party based
on conduct occurring during a mediation.
(b) There is no privilege if a court or administrative agency,
finds, after a hearing in camera, that the party seeking
discovery of the proponent of the evidence has shown
that the evidence is not otherwise available, that there
is a need for the evidence that substantially outweighs
the interest in protecting confidentiality, and the
mediation communication is sought or offered in:
a.
a court proceeding involving a crime or
felony; or
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Kenneth & King Hizon (3A)
b.
a proceeding to prove a claim or defense
that under the law is sufficient to reform or
avoid a liability on a contract arising out of
the mediation.
NOTE: A mediator may not be compelled to provide evidence
of a mediation communication or testify in such proceeding.
CONFLICT OF INTEREST
Mediator's Disclosure and Conflict of Interest
Q: What is the obligation of the Mediator before accepting a
mediation?
A: Before accepting a mediation, an individual who is
requested to serve as a mediator shall:
1)
2)
make an inquiry that is reasonable under the
circumstances to determinate whether there are any
known facts that a reasonable individual would
consider likely to affect the impartiality of the
mediator, including a financial or personal interest in
the outcome of the mediation and any existing or
past relationship with a party or foreseeable
participant in the mediation; and
disclosure to the mediation parties any such fact
known or learned as soon as is practical before
accepting a mediation.
Q: Can the mediator be asked to disclose his/her
qualifications?
A: Yes. At the request of a mediation party, an individual who
is requested to serve as mediator shall disclose his/her
qualifications to mediate a dispute.
Q: Suppose that the proposed mediator did not disclose any
of the matters that he is supposed to disclose, and as a
consequence of that, he was appointed as a mediator,
immediately the parties knew such failure to disclose in the
middle of the mediation proceedings, what can the party
do?
A: The party can remove the mediator and substitute another
one. Failure of the party to remove the mediator means there
is a waiver.
Q: Can the parties ask the mediator to establish his
qualification?
A: At the request of a mediation party, an individual who is
requested to serve as mediator shall disclose his/her
qualifications to mediate a dispute.
_____________________________________________
A: The parties on their agreement.
NOTE: The law does not require that a mediator shall have
special qualifications by background or profession unless the
special qualifications of a mediator are required in the
mediation agreement or by the mediation parties.
PARTICIPATION OF A LAWYER IN MEDIATION
Q: May a party ask the assistance of a lawyer in mediation
proceedings?
A: Yes. A party may designate a lawyer or any other person
to provide assistance in the mediation.
Q: May a party be legally represented by a foreign lawyer in
mediation proceedings?
A: (Please refer to International Commercial Arbitration
regarding legal representation by a party)
PLACE OF MEDIATION
Q: Where should the Mediation be held?
A: The parties are free to agree on the place of mediation.
Failing such agreement, the place of mediation shall be any
place convenient and appropriate to all parties.
ENFORCEMENT OF MEDIATED SETTLEMENT AGREEMENT
Q: How is a mediated settlement agreement prepared?
A: A settlement agreement following successful mediation
shall be prepared by the parties with the assistance of their
respective counsel, if any, and by the mediator.
Q: Who are required to sign the agreement?
A: The parties and their respective counsels, if any, shall sign
the settlement agreement. The mediator shall certify that
he/she explained the contents of the settlement agreement
to the parties in a language known to them.
Deposit of the Settlement Agreement
Q: Where should the settlement be deposited?
A: If the parties so desire, they may deposit such settlement
agreement with the appropriate Clerk of a Regional Trial
Court of the place where one of the parties resides.
Q: How should the agreement be enforced?
Q: Who should determine the qualifications of the
mediator?
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Kenneth & King Hizon (3A)
A: Where there is a need to enforce the settlement
agreement, a petition may be filed by any of the parties with
the same court, in which case, the court shall proceed
summarily to hear the petition, in accordance with such rules
of procedure as may be promulgated by the Supreme Court.
Settlement agreement to be treated as an arbitral award
and the mediator acting as arbitrator
Q: Can the settlement agreement be treated as an arbitral
award? How?
A: The parties may agree in the settlement agreement that
the mediator shall become a sole arbitrator for the dispute
and shall treat the settlement agreement as an arbitral award
which shall be subject to enforcement under Republic Act No.
876, otherwise known as the Arbitration Law.
ARBITRATION
_____________________________________________
MEDIATION
ARBITRATION
As to function
Does not render an award The arbitrator acts as an outbut only arranges the facts to of-court judge and settles the
be negotiated so that the dispute extra-judicially.
parties can come to a He makes a determination of
compromise agreement.
the facts to resolve a dispute
He assists the parties in independently of the actual
reaching
a
mutually result desired by the parties.
agreeable settlement of their
dispute
through
direct
negotiations.
As to resolution
There is only mediation There is an arbitral award
settlement. As a rule a
mediator cannot make an
award but the mediation
settlement can be an award
provided that it is reduced
into writing signed by the
parties and their counsel and
the mediator.
Q: What are the elements of arbitration?
A: The elements or arbitration are:
a. The parties have mutually agreed to submit their
dispute to selected persons whose determination is
to be accepted as a substitute for the judgment of a
court;
b. There is an actual dispute or matter in controversy;
and
c. The dispute or matter in controversy is capable of
being referred to arbitration.
Q: How may the consent of the parties to arbitrate their
dispute be expressed?
A: The parties may SUBMIT to arbitration any controversy
existing between them at the time of the submission and
which may be the subject of an action.
Also, the parties to any contract may in such CONTRACT
agree to settle by arbitration a controversy thereafter arising
between them.
Q: Distinguish an arbitrator from a mediator.
Failure to comply with such
mediation settlement will
give the right to the parties
to go to court for the
enforcement
of
that
mediation settlement.
Appointment of ADR Practitioners
Appointed by the court
Appointed by the parties if
there is an agreement that
only one arbitrator shall
settle their dispute.
But in case where the parties
agrees to appoint each
arbitrator of their own
choice, then the 2 appointed
arbitrator will appoint a 3rd
arbitrator
As to number of ADR practitioners
Only 1
1-3 arbitrators
As to intervention of court
There is no need for There is a need for the court
confirmation of court
to confirm the arbitral award
A: An arbitrator acts as an out of court judge and settles
disputes extra-judicially. A mediator does not render an
award but only arranges the facts to be negotiated so parties
can come to a compromise agreement.
Q: Distinguish arbitration from mediation.
A:
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Kenneth & King Hizon (3A)
_____________________________________________
INTERNATIONAL COMMERCIAL ARBITRATION
Adoption of the Model Law on International Commercial
Arbitration
any other quasi-judicial body whether or not such
appearance is in relation to the arbitration in which he
appears.
Q: What is the governing law with regard to International
Commercial Arbitration?
CONFIDENTIALITY OF ARBITRATION PROCEEDINGS
(Applicable also in Domestic Arbitration)
A: International commercial arbitration shall be governed by
the Model Law on International Commercial Arbitration (the
"Model Law") adopted by the United Nations Commission on
International Trade Law on June 21, 1985.
Q: What is covered by the confidentiality rule in arbitration
proceedings? May the records of arbitration proceedings be
published?
A:
COMMERCIAL ARBITRATION
Q: When is an arbitration considered as commercial?
GR: The arbitration proceedings, including the records,
evidence and the arbitral award, shall be considered
confidential and shall not be published.
A: An arbitration is "commercial" if it covers matters arising
from all relationships of a commercial nature, whether
contractual or not.
XPN:
(1) with the consent of the parties, or
(2) for the limited purpose of disclosing to the
court of relevant documents in cases where
resort to the court is allowed herein.
Q: What are the matters or transactions considered as
commercial?
A: Relationships of a transactions include:
a.
any trade transaction for the supply or exchange of
goods or services;
b. distribution agreements;
c. construction of works;
d. commercial representation or agency;
e. factoring;
f. leasing, consulting;
g. engineering;
h. licensing;
i. investment;
j. financing;
k. banking;
l. insurance;
m. joint venture and other forms of industrial or
business cooperation;
n. carriage of goods or passengers by air, sea, rail or
road.
LEGAL REPRESENTATION IN INTERNATIONAL ARBITRATION
(Applicable also in Domestic Arbitration)
Q: Can the court in which the action or the appeal is pending
issue a protective order or prohibit disclosure or
information?
A: Yes. The court in which the action or the appeal is pending
may issue a protective order to prevent or prohibit disclosure
of documents or information containing secret processes,
developments, research and other information where it is
shown that the applicant shall be materially prejudiced by an
authorized disclosure thereof.
REFERRAL TO ARBITRATION
(Applicable also in Domestic Arbitration)
Q: When should the court refer the parties to arbitration?
A: A court before which an action is brought in a matter
which is the subject matter of an arbitration agreement shall:
a.
b.
Q: Give the rule with regard to the representation of a party
in international (as well as in mediation and domestic)
arbitration? May an alien represent a party in international
arbitration conducted in the Philippines?
A: Yes. In international arbitration conducted in the
Philippines, a party may be presented by any person of his
choice. Provided, that such representative, unless admitted
to the practice of law in the Philippines, shall not be
authorized to appear as counsel in any Philippine court, or
If at least one party so requests not later that the
pre-trial conference; or
Upon the request of both parties thereafter
refer the parties to arbitration unless it finds that the
arbitration agreement is:
a.
b.
c.
null and void;
inoperative; or
incapable of being performed
Q: May the courts dismiss the action for arbitration motu
proprio?
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Kenneth & King Hizon (3A)
A: Yes, as a general rule, a court before which an action is
brought in a matter which si the subject of an arbitration
agreement shall, if a party so requests, refer the parties to
arbitration. However, courts may dismiss an action for
arbitration motu proprio if it finds that the arbitration
agreement is null and voud, inoperative or incapable of being
performed.
CONSTITUTION OF THE ARBITRAL TRIBUNAL
Q: When is the arbitral tribunal deemed constituted?
A: The arbitral tribunal is deemed constituted when the sole
arbitrator or the third arbitrator who has been nominated,
has accepted the nomination and written communication of
said nomination and acceptance has been received by the
party making request.
GRANT OF INTERIM MEASURE OF PROTECTION
(Applicable also in Domestic Arbitration)
Q: May the parties request for interim measure of
protection in arbitral proceedings? Where should the
request for interim measure of protection be made?
A: It is not incompatible with an arbitration agreement for a
party to request:
a.
b.
Before constitution of the tribunal, from a Court an
interim measure of protection and for the Court to
grant such measure.
After constitution of the arbitral tribunal and
during arbitral proceedings, a request for an interim
measure of protection or modification thereof, may
be made with the arbitral tribunal or to the extent
that the arbitral tribunal has no power to act or is
unable to act effectively, the request may be made
with the Court.
Q: In what instances may an interim measure of protection
be allowed?
A: An interim measure of protection may be granted if
necessary:
i.
ii.
iii.
iv.
to prevent irreparable loss or injury:
to provide security for the performance of any
obligation;
to produce or preserve any evidence; or
to compel any other appropriate act or omission.
Q: How should the application for interim or provisional
relief be made? What is the form of such application?
_____________________________________________
A: Interim or provisional relief is requested by written
application transmitted by reasonable means to the Court or
arbitral tribunal as the case may be.
Q: What should be stated in the application?
A: It shall state the following facts:
a.
b.
c.
d.
e.
the party against whom the relief is sought;
describing in appropriate detail the precise relief;
the party against whom the relief is requested;
the grounds for the relief; and
evidence supporting the request.
NOTE: The order shall be binding upon the parties.
Q: What is the effect if a party does not comply with the
order for interim or provisional relief?
A: A party who does not comply with the order shall be liable
for all damages resulting from noncompliance, including all
expenses, and reasonable attorney's fees, paid in obtaining
the order's judicial enforcement.
Q: What are the interim measures of protection available to
the parties in an arbitration proceeding?
A: Such interim measures may include but shall not be limited
to:
a.
b.
c.
preliminary injuction directed against a party;
appointment of receivers or detention;
preservation, inspection of property that is the
subject of the dispute in arbitration.
PLACE OF ARBITRATION
Q: Where should the arbitration be conducted?
A: The parties are free to agree on the place of arbitration.
Failing such agreement:
a. The place of arbitration shall be in Metro Manila,
unless the arbitral tribunal, having regard to the
circumstances of the case, including the convenience
of the parties shall decide on a different place of
arbitration.
b. The arbitral tribunal may, unless otherwise agreed
by the parties, meet at any place it considers
appropriate for consultation among its members, for
hearing witnesses, experts, or the parties, or for
inspection of goods, other property or documents.
LANGUAGE OF THE ARBITRATION
Q: What is the language to be used in arbitration
proceedings?
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Kenneth & King Hizon (3A)
_____________________________________________
e.
A: The parties are free to agree on the language or languages
to be used in the arbitral proceedings. Failing such
agreement:
a.
b.
the language to be used shall be English in
international arbitration; and
English or Filipino for domestic arbitration, unless
the arbitral tribunal shall determine a different or
another language or languages to be used in the
proceedings.
This agreement or determination, unless otherwise specified
therein, shall apply to any written statement by a party, any
hearing and any award, decision or other communication by
the arbitral tribunal.
The arbitral tribunal may order that any documentary
evidence shall be accompanied by a translation into the
language or languages agreed upon by the parties.
DOMESTIC ARBITRATION
Q: What is the law governing domestic arbitration?
A: Domestic arbitration shall continue to be governed by
Republic Act No. 876, otherwise known as "The Arbitration
Law.
ARBITRATION OF CONSTRUCTION DISPUTES
Q: What is the law governing arbitration of construction
disputes?
A: The arbitration of construction disputes shall be governed
by Executive Order No. 1008, otherwise known as the
Constitution Industry Arbitration Law.
Q: What is the coverage of EO No. 1008?
A: Construction disputes which fall within the original and
exclusive jurisdiction of the Construction Industry Arbitration
Commission (the "Commission") shall include those between
or among parties to, or who are otherwise bound by, an
arbitration agreement, directly or by reference whether such
parties are:
a.
b.
c.
d.
project owner
contractor
subcontractor
quantity surveyor
bondsman or issuer of an insurance policy in a
construction project.
Q: May an arbitrator act as mediator and a mediator act as
arbitrator?
A: Yes. By written agreement of the parties to a dispute, an
arbitrator may act as mediator and a mediator may act as
arbitrator. The parties may also agree in writing that,
following a successful mediation, the mediator shall issue the
settlement agreement in the form of an arbitral award.
Q: Under what instances can a foreign arbitrator or coarbitrator be appointed?
A: The Construction Industry Arbitration Commission (CIAC)
shall promulgate rules to allow for the appointment of a
foreign arbitrator or coarbitrator or chairman of a tribunal a
person who has not been previously accredited by CIAC:
Provided, That:
(a) the dispute is a construction dispute in which one
party is an international party
(b) the person to be appointed agreed to abide by the
arbitration rules and policies of CIAC;
(c) he/she is either coarbitrator upon the nomination of
the international party; or he/she is the common
choice of the two CIAC-accredited arbitrators first
appointed one of whom was nominated by the
international party; and
(d) the foreign arbitrator shall be of different nationality
from the international party.
Q: What is the effect if the dispute is filed in the RTC?
A: A regional trial court which a construction dispute is filed
shall, upon becoming aware, not later than the pretrial
conference, that the parties had entered into an arbitration
to be conducted by the CIAC, unless both parties, assisted by
their respective counsel, shall submit to the regional trial
court a written agreement exclusive for the Court, rather
than the CIAC, to resolve the dispute.
Foreign Arbitral Award Not Foreign Judgment
A foreign arbitral award when confirmed by a court of a
foreign country, shall be recognized and enforced as a foreign
arbitral award and not a judgment of a foreign court.
A foreign arbitral award, when confirmed by the regional trial
court, shall be enforced as a foreign arbitral award and not as
a judgment of a foreign court.
A foreign arbitral award, when confirmed by the regional trial
court, shall be enforced in the same manner as final and
executory decisions of courts of law of the Philippines.
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NOTES ON ALTERNATIVE DISPUTE RESOLUTION
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thereafter
clause).
Appeal from Court Decisions on Arbitral Awards
A decision of the regional trial court confirming, vacating,
setting aside, modifying or correcting an arbitral award may
be appealed to the Court of Appeals in accordance with the
rules of procedure to be promulgated by the Supreme Court.
Q: Where should the recognition and enforcement of an
arbitration agreement or for vacation, setting aside,
correction or modification of an arbitral award should be
made?
A: It shall be filled with the regional trial court:
(a) where arbitration proceedings are conducted;
(b) where the asset to be attached or levied upon, or
the act to be enjoined is located;
(c) where any of the parties to the dispute resides or
has his place of business; or
(d) in the National Judicial Capital Region, at the option
of the applicant.
Q: When should the notice of proceeding to parties be
made?
A: In a special proceeding for recognition and enforcement of
an arbitral award, the Court shall send notice to the parties at
their address of record in the arbitration, or if any party
cannot be served notice at such address, at such party's last
known address. The notice shall be sent at least fifteen (15)
days before the date set for the initial hearing of the
application.
REPUBLIC ACT NO. 876
AN ACT TO AUTHORIZE THE MAKING OF ARBITRATION AND
SUBMISSION AGREEMENTS, TO PROVIDE FOR THE
APPOINTMENT OF ARBITRATORS AND THE PROCEDURE FOR
ARBITRATION IN CIVIL CONTROVERSIES, AND FOR OTHER
PURPOSES
arising
between
them
(arbitration
Q: Distinguish arbitration clause from submission clause.
A:
ARBITRATION CLAUSE
A clause in the contract
which says that in event of a
future dispute between the
parties, such dispute shall be
submitted to arbitration.
When the contract is brought
to court, a party may request
the court to suspend the
proceedings and bring it to
arbitration and the award of
arbitrator would then be
brought
to
court
for
recognition and execution
SUBMISSION CLAUSE
It is an agreement in writing
and subscribed by the
parties, and entered into if
they already have a present
dispute and there is no
arbitration clause in their
contract.
Such
admission
for
arbitration is deemed a
consent of the parties to the
jurisdiction of the RTC of the
province or city where any of
the parties reside, to enforce
such contract or submission.
NOTE: Such submission or contract shall be valid, enforceable
and irrevocable, save upon such grounds as exist at law for
the revocation of any contract.
Q: What are the advantages of arbitration?
A:
1.
2.
3.
4.
5.
6.
7.
The availability of experts on technical matters involved
in a dispute. There is an expert determination of the
questions of fact involved.
Speedier process of arbitration in resolving a case
Less expenses on the part of the parties
Trade contracts or relationship between the parties are
not ruptured by arbitration
Privacy is attained in arbitration
Filial or friendly atmosphere
Flexibility of proceedings—arbitral proceedings are not
bound by the strict rules of evidence
Persons and matters subject to arbitration
Q: What is the form of arbitration agreement?
Q: Under what instances may the party submit to
arbitration?
A: Two or more persons or parties may submit to the
arbitration of one or more arbitrators:
a.
b.
Any controversy existing between them at the time
of the submission and which may be the subject of
an action (submission clause); or
The parties to any contract may in such contract
agree to settle by arbitration a controversy
A: A contract to arbitrate a controversy thereafter arising
between the parties, as well as a submission to arbitrate an
existing controversy shall be in writing and subscribed by the
party sought to be charged, or by his lawful agent.
Q: How should the arbitration be instituted?
A: An arbitration shall be instituted by:
Submission of future controversy
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Kenneth & King Hizon (3A)
a)
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In the case of a contract to arbitrate future
controversies by the service by either party upon
the other of a demand for arbitration in accordance
with the contract.
Submission of an existing controversy
c)
Q: What should the demand set forth?
A: Such demand shall be set forth:
1.
2.
3.
the nature of the controversy;
the amount involved, if any; and
the relief sought, together with a true copy of
the contract providing for arbitration.
NOTE: The demand shall be served upon any party either in
person or by registered mail.
Appointment of Arbitrator
Single Arbitrator
In the event that the contract between the parties provides
for the appointment of a single arbitrator, the demand shall
be set forth a specific time within which the parties shall
agree upon such arbitrator.
Three arbitrators
If the contract between the parties provides for the
appointment of three arbitrators, one to be selected by each
party, the demand shall:
1.
2.
3.
name the arbitrator appointed by the party making
the demand and;
shall require that the party upon whom the demand
is made shall within fifteen days after receipt
thereof advise in writing the party making such
demand of the name of the person appointed by
the second party;
such notice shall require that the two arbitrators so
appointed must agree upon the third arbitrator
within ten days from the date of such notice.
Hearing by Court
Q: In case of failure, neglect or refusal of another to comply
with the said agreement, what can the aggrieved party do?
A: He may petition the court for an order directing that such
arbitration proceed in the manner provided for in such
agreement.
NOTE: Five days notice in writing of the hearing of such
application shall be served either personally or by registered
mail upon the party in default.
If the finding be that no agreement in writing providing for
arbitration was made, or that there is no default in the
proceeding thereunder, the proceeding shall be dismissed. If
the finding be that a written provision for arbitration was
made and there is a default in proceeding thereunder, an
order shall be made summarily directing the parties to
proceed with the arbitration in accordance with the terms
thereof.
Stay of civil action
Q: What is the effect to the court proceeding if any suit or
proceeding is brought upon an issue arising out of an
agreement providing for the arbitration thereof?
A: In such case, the court in which such suit or proceeding is
pending, upon being satisfied that the issue involved in such
suit or proceeding is referable to arbitration, shall stay the
action or proceeding until an arbitration has been had in
accordance with the terms of the agreement.
Q: If a party defaults in answering the demand, what is the
remedy of the aggrieved party?
A:
by the filing with the Clerk of the Court of First
Instance having jurisdiction, of the submission
agreement, setting forth the nature of the
controversy, and the amount involved, if any. Such
submission may be filed by any party and shall be
duly executed by both parties.
Appointment of arbitrators
Q: How should the appointment of arbitrators be made?
b) In the event that one party defaults in answering the
demand, the aggrieved party may file with the Clerk
of the Court of First Instance having jurisdiction
over the parties, a copy of the demand for
arbitration under the contract to arbitrate, with a
notice that the original demand was sent by
registered mail or delivered in person to the party
against whom the claim is asserted.
A:
1.
in accordance with the method of naming or
appointing the arbitrators/s described in the
contract for arbitration or in the submission
contract;
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UNIVERSITY OF SANTO TOMAS
NOTES ON ALTERNATIVE DISPUTE RESOLUTION
Kenneth & King Hizon (3A)
2.
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but if no method be provided therein the Court of
First Instance shall designate an arbitrator or
arbitrators.
a.
b.
c.
d.
Q: Under what circumstances can the CFI appoint an
arbitrator or arbitrators?
e.
A:
a)
If the parties to the contract or submission are
unable to agree upon a single arbitrator; or
b) If an arbitrator appointed by the parties is unwilling
or unable to serve, and his successor has not been
appointed in the manner in which he was appointed;
or
c) If either party to the contract fails or refuses to
name his arbitrator within fifteen days after receipt
of the demand for arbitration; or
d) If the arbitrators appointed by each party to the
contract, or appointed by one party to the contract
and by the proper Court, shall fail to agree upon or
to select the third arbitrator.
NOTE: The court shall, in its discretion appoint one or three
arbitrators, according to the importance of the controversy
involved in any of the preceding cases in which the
agreement is silent as to the number of arbitrators.
must be of legal age;
in full-enjoyment of his civil rights; and
know how to read and write.
No person appointed to served as an arbitrator shall
be related by blood or marriage within the sixth
degree to either party to the controversy.
No person shall serve as an arbitrator in any
proceeding if he has or has had financial, fiduciary or
other interest in the controversy or cause to be
decided or in the result of the proceeding, or has any
personal bias, which might prejudice the right of any
party to a fair and impartial award.
NOTE: No party shall select as an arbitrator any person to act
as his champion or to advocate his cause.
Q: According to Dr. Palacios, what are the qualities to
consider in appointing an arbitrator?
A:
1.
2.
3.
4.
5.
Persuasiveness, ability to convey ideas, knowledge;
Ability to fully adopt the position of his party;
Ability to convince other party to accept their
position;
Party should be fully convinced that his arbitrator
works for him/her; and
Sense of equity, fairness, and justice
Q: Can the arbitrators appointed decline? How should the
vacancy be filled?
Discovery of any circumstances that may disqualify the
arbitrator
A: Arbitrators appointed under this section shall either accept
or decline their appointments within seven days of the
receipt of their appointments. In case of declination or the
failure of an arbitrator or arbitrators to duly accept their
appointments the parties or the court, as the case may be,
shall proceed to appoint a substitute or substitutes for the
arbitrator or arbitrators who decline or failed to accept his or
their appointments.
If, after appointment but before or during hearing, a person
appointed to serve as an arbitrator shall discover:
Appointment of additional arbitrators
Where a submission or contract provides that two or more
arbitrators therein designated or to be thereafter appointed
by the parties, may select or appoint a person as an
additional arbitrator, the selection or appointment must be in
writing. Such additional arbitrator must sit with the original
arbitrators upon the hearing.
a.
b.
any circumstances likely to create a presumption of
bias, or
which he believes might disqualify him as an
impartial arbitrator
the arbitrator shall immediately disclose such information to
the parties. Thereafter the parties may agree in writing:
a.
b.
to
waive
the
presumptive
disqualifying
circumstances; or
to declare the office of such arbitrator vacant. Any
such vacancy shall be filled in the same manner as
the original appointment was made.
Challenge of arbitrators
Qualifications of arbitrators
Q: What are the qualifications of the arbitrators to be
appointed?
A: Any person appointed to serve as an arbitrator:
Q: Under what reasons may the arbitrators be challenged
(vis-à-vis their qualification)? When may the appointment of
the arbitrators be challenged?
A: An arbitrator maybe be challenged only if circumstances
exist that give rise to justifiable doubts as to his impartiality
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NOTES ON ALTERNATIVE DISPUTE RESOLUTION
Kenneth & King Hizon (3A)
or independence or if he does not possess qualifications
agreed to by the parties. A party may challenge an arbitrator
appointed by him, or in whose appointment he has
participated, only for reasons of which he becomes aware
after the appointment has been made.
_____________________________________________
a.
b.
within five days after appointment if the parties to
the controversy reside within the same city or
province, or
within fifteen days after appointment if the parties
reside in different provinces,
The arbitrators may be challenged only for the reasons
mentioned above which may have arisen after the arbitration
agreement or were unknown at the time of arbitration.
set a time and place for the hearing of the matters submitted
to them, and must cause notice thereof to be given to each of
the parties.
Q: Where should the challenge be made? Should it be with
the arbitral tribunal or with the RTC?
Q: Can the hearing be postponed or adjourned?
A: The challenge shall be made before them. If they do not
yield to the challenge, the challenging party may renew the
challenge before the Court of First Instance of the province or
city in which the challenged arbitrator, or, any of them, if
there be more than one, resides.
Q: What is the effect of the challenging incident to the
arbitral proceedings?
A: While the challenging incident is discussed before the
court, the hearing or arbitration shall be suspended, and it
shall be continued immediately after the court has delivered
an order on the challenging incident.
Q: What is the consequence of the arbitrator’s nonperformance of his functions?
A: His mandate terminates. The parties may request for his
termination.
A: Yes. The hearing can be postponed or adjourned by the
arbitrators only by agreement of the parties; otherwise,
adjournment may be ordered by the arbitrators upon their
own motion only at the hearing and for good and sufficient
cause.
NOTE: No adjournment shall extend the hearing beyond the
day fixed in the submission or contract for rendering the
award, unless the time so fixed is extended by the written
agreement of the parties to the submission or contract or
their attorneys, or unless the parties have continued with the
arbitration without objection to such adjournment.
Q: What is the effect of the absence of any party to the
hearing?
A: The hearing may proceed in the absence of any party who,
after due notice, fails to be present at such hearing or fails to
obtain an adjournment thereof.
Q: Can an award be made solely on default of a party?
Q: Distinguish de facto from de jure arbitrator.
A:
DE JURE
A person who took over the
arbitration proceedings as
arbitrator without an express
consent of the parties.
DE FACTO
one who is legally appointed
by the parties
If without objection by the
parties, the actions of the de
facto arbitrator will be
sustained but if the parties
objected to it, his action will
be withdrawn
A: No. An award shall not be made solely on the default of a
party. The arbitrators shall require the other party to submit
such evidence as they may require for making an award.
Q: Who can represent a party to arbitration?
A: No one other than a party to said arbitration, or a person
in the regular employ of such party duly authorized in
writing by said party, or a practicing attorney-at-law, shall
be permitted by the arbitrators to represent before him or
them any party to the arbitration.
NOTE: Any party desiring to be represented by counsel shall
notify the other party or parties of such intention at least five
days prior to the hearing.
Procedure by the arbitrators
Q: Who can attend the arbitration proceedings?
Subject to the terms of the submission or contract, if any are
specified therein, are arbitrators selected as prescribed
herein must:
A: Persons having a direct interest in the controversy which is
the subject of arbitration shall have the right to attend any
hearing; but the attendance of any other person shall be at
the discretion of the arbitrators.
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Kenneth & King Hizon (3A)
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Powers of an arbitrator
Q:
What
are
the
powers
of
an
arbitrator?
A: The following are the powers of arbitrators:
a.
b.
c.
d.
e.
f.
g.
To require any person to attend a hearing as a
witness;
To subpoena witnesses and documents when the
relevancy of the testimony and the materiality
thereof has been demonstrated;
To require the retirement of any witness during the
testimony of any other witness;
To take measures to safeguard and/or conserve any
matter which is the subject of the dispute in
arbitration;
To render a fair, reasonable and impartial award;
To accept pleadings; and
To admit evidence
NOTE: All of the arbitrators appointed in any controversy
must attend all the hearings in that matter and hear all the
allegations and proofs of the parties; but an award by the
majority of them is valid unless the concurrence of all of
them is expressly required in the submission or contract to
arbitrate.
Hearing by the arbitrators
Arbitrators may, at the commencement of the hearing, ask
both parties for brief statements of the issues in controversy
and/or an agreed statement of facts. Thereafter the parties
may offer such evidence as they desire, and shall produce
such additional evidence as the arbitrators shall require or
deem necessary to an understanding and determination of
the dispute.
Q: In hearing the parties and admitting their evidence, is the
tribunal bound by the Rules of Evidence?
A: The arbitrators shall be the sole judge of the relevancy and
materiality of the evidence offered or produced, and shall not
be bound to conform to the Rules of Court pertaining to
evidence.
Arbitrators shall receive as exhibits in evidence any document
which the parties may wish to submit and the exhibits shall
be properly identified at the time of submission.
NOTE: The arbitrators may make an ocular inspection of any
matter or premises which are in dispute, but such inspection
shall be made only in the presence of all parties to the
arbitration, unless any party who shall have received notice
thereof fails to appear, in which event such inspection shall
be made in the absence of such party.
Time for rendering award
Unless the parties shall have stipulated by written agreement
the time within which the arbitrators must render their
award, the written award of the arbitrators shall be rendered
within thirty days after the closing of the hearings or if the
oral hearings shall have been waived, within thirty days
after the arbitrators shall have declared such proceedings in
lieu of hearing closed. This period may be extended by
mutual consent of the parties.
Form and contents of award
Q: What should be the form and contents of an arbitral
award?
A: The arbitral award shall be made in writing and shall be
signed by the arbitrator or arbitrators. In arbitral proceedings
with more than one arbitrator, the signatures of the majority
of all members of the arbitral tribunal shall suffice, provided
that the reason for any omitted signature is stated. The
award shall state the reasons upon which it is based, unless
the parties have agreed that no reasons are to be given. The
award shall state its date and the place or arbitration. After
the award is made, a copy signed by the arbitrators shall be
delivered to each party.
NOTE: In the event that the parties to an arbitration have,
during the course of such arbitration, settled their dispute,
they may request of the arbitrators that such settlement be
embodied in an award which shall be signed by the
arbitrators.
Q: Can the arbitrator act as a mediator in an arbitration
proceeding?
A: No. No arbitrator shall act as a mediator in any proceeding
in which he is acting as arbitrator.
Accordingly, unlike a mediator, arbitrators have the power
and authority to render an arbitral award.
Q: How may an arbitral award be confirmed?
Q: Who shall take possession or custody of the evidence
submitted by the parties?
A: All exhibits shall remain in the custody of the Clerk of Court
during the course of the arbitration and shall be returned to
the parties at the time the award is made.
A: At any time within one month after the award is made, any
party to the controversy which was arbitrated may apply to
the court having jurisdiction, as provided in section twentyeight, for an order confirming the award. The court must
grant such order unless the award is vacated, modified or
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Kenneth & King Hizon (3A)
corrected, as prescribed herein. Notice of such motion must
be served upon the adverse party or his attorney. A domestic
arbitral award shall be enforced in the same manner as final
and executory decisions of the RTC.
Vacating an award
Q: What are the grounds for vacating award?
A: In any one of the following cases, the court must make an
order vacating the award upon the petition of any party to
the controversy when such party proves affirmatively that in
the arbitration proceedings:
a.
b.
c.
d.
e.
The award was procured by corruption, fraud, or
other undue means; or
That there was evident partiality or corruption in the
arbitrators or any of them;
That the arbitrators were guilty of misconduct in
refusing to postpone the hearing upon sufficient
cause shown, or in refusing to hear evidence
pertinent and material to the controversy;
that one or more of the arbitrators was disqualified
to act as such under section nine hereof, and wilfully
refrained from disclosing such disqualifications or of
any other misbehavior by which the rights of any
party have been materially prejudiced;
That the arbitrators exceeded their powers, or so
imperfectly executed them, that a mutual, final and
definite award upon the subject matter submitted to
them was not made.
Modifying or correcting an award
Q: What are the grounds for modifying or correcting an
award?
A: In any one of the following cases, the court must make an
order modifying or correcting the award, upon the
application of any party to the controversy which was
arbitrated:
a.
b.
c.
Where there was an evident miscalculation of
figures, or an evident mistake in the description of
any person, thing or property referred to in the
award; or
Where the arbitrators have awarded upon a matter
not submitted to them, not affecting the merits of
the decision upon the matter submitted; or
Where the award is imperfect in a matter of form
not affecting the merits of the controversy, and if it
had been a commissioner's report, the defect could
have been amended or disregarded by the court.
_____________________________________________
confirming, modifying, correcting, or vacating an award, shall
at the time that such motion is filed with the court for the
entry of judgment thereon also file the following papers with
the Clerk of Court;
(a) The submission, or contract to arbitrate; the
appointment of the arbitrator or arbitrators; and
each written extension of the time, if any, within
which to make the award.
(b) A verified of the award.
(c) Each notice, affidavit, or other paper used upon
the application to confirm, modify, correct or vacate
such award, and a copy of each of the court upon
such application.
Appeal
An appeal may be taken from an order made in a proceeding
under this Act, or from a judgment entered upon an award
through certiorari proceedings, but such appeals shall be
limited to questions of law.
Q: What are the remedies of the aggrieved party against an
arbitral award?
A: Under Article 2044 of the New Civil Code, the validity of
any stipulation on the finality of the arbitrators’ award or
decision is recognized. However, where the conditions
described in Articles 2038, 2039, and 2040 applicable to both
compromises and arbitrations are obtaining, the arbitrators’
award may be annulled or rescinded.
Consequently, the decision of the Arbitration Committee is
subject to judicial review. The proper recourse of the
petitioner from the denial of its motion for reconsideration
by the Arbitration Committee is to file either:
a. a motion to vacate the arbitral award with the RTC;
b. a petition for review with the Court of Appeals under
Rule 43 of the Rules of Court; or
c. a petition for certiorari under Rule 65 of the Rules of
Court.
The RTC will only have jurisdiction over an arbitral award in
cases of motions to vacate the same. Otherwise, as
elucidated herein, the Court of Appeals retains jurisdiction in
petitions for review or in petitions for certiorari (Insular
Savings Bank vs. Far East Bank and Trust Company, 492 SCRA
145, 22 June 2006).
Section 28. Papers to accompany motion to confirm, modify,
correct, or vacate award. - The party moving for an order
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NOTES ON ALTERNATIVE DISPUTE RESOLUTION
Kenneth & King Hizon (3A)
UNCITRAL Model Law on International Commercial
Arbitration
Q: What is commercial arbitration?
A: It covers matters arising from all relationships of a
commercial nature, whether contractual or not. Relationships
of a commercial nature include, but are not limited to, the
following transactions: any trade transaction for the supply or
exchange of goods or services; distribution agreement;
commercial representation or agency; factoring; leasing;
construction of works; consulting; engineering; licensing;
investment; financing; banking; insurance; exploitation
agreement or concession; joint venture and other forms of
industrial or business cooperation; carriage of goods or
passengers by air, sea, rail or road.
Q: When may the appointment of an arbitrator be
challenged? (see Sect. 11 of R.A. 876)
A: When a person is approached in connection with his
possible appointment as an arbitrator, he shall disclose any
circumstances likely to give rise to justifiable doubts as to his
impartiality or independence. An arbitrator, from the time of
his appointment and throughout the arbitral proceedings,
shall without delay disclose any such circumstances to the
parties unless they have already been informed of them by
him.
An arbitrator may be challenged only if circumstances exist
that give rise to justifiable doubts as to his impartiality or
independence, or if he does not possess qualifications agreed
to by the parties. A party may challenge an arbitrator
appointed by him, or in whose appointment he has
participated, only for reasons of which he becomes aware
after the appointment has been made (Article 12 of
UNCITRAL).
Q: What is the form and contents of an arbitral award under
the Model Law (see Sec. 20 of R.A. 876)?
A: The award shall be made in writing and shall be signed by
the arbitrator or arbitrators. In arbitral proceedings with
more than one arbitrator, the signatures of the majority of all
members of the arbitral tribunal shall suffice, provided that
the reason for any omitted signature is stated. The award
shall state the reasons upon which it is based, unless the
parties have agreed that no reasons are to be given. The
award shall state its date and the place of arbitration. The
award shall be deemed to have been made at that place.
After the award is made, a copy signed by the arbitrators
shall be delivered to each party (Article 31 of the Model Law).
Q: Can a foreign award be enforced in the Philippines under
the Rules of Court on the recognition and enforcement
judgment?
_____________________________________________
A: No. foreign arbitral awards are not like foreign court
judgments. They may be enforced under Sec. 44 of R.A 9285:
A foreign arbitral award when confirmed by a court of a
foreign country, shall be recognized and enforced as a foreign
arbitral award and not a judgment of a foreign court.
A foreign arbitral award, when confirmed by the regional trial
court, shall be enforced as a foreign arbitral award and not as
a judgment of a foreign court.
A foreign arbitral award, when confirmed by the regional trial
court, shall be enforced in the same manner as final and
executory decisions of courts of law of the Philippines.
NOTE: If the recognition and enforcement of foreign awards
not covered by the New York Convention, courts, may, on the
grounds of comity and reciprocity, recognize and enforce a
non-convention award as a convention award.
Q: What is the nature of the action for recognition and
enforcement of a foreign award? Where should it be filed?
A: Proceedings for recognition and enforcement of an
arbitration agreement or for vacation, setting aside,
correction or modification of an arbitral award, and any
application with a court for arbitration assistance and
supervision shall be deemed as special proceedings and shall
be filled with the regional trial court (i) where arbitration
proceedings are conducted; (ii) where the asset to be
attached or levied upon, or the act to be enjoined is located;
(iii) where any of the parties to the dispute resides or has his
place of business; or (iv) in the National Judicial Capital
Region, at the option of the applicant (Section 47 of R.A.
9285).
Grounds for refusing recognition or enforcement
Q: When may a foreign award be refused recognition and
enforcement in our jurisdiction?
A:
1.
At the request of the party against whom it is
invoked, if that party furnishes to the competent
court where recognition or enforcement is sought
proof that:
a.
a party to the arbitration agreement referred to in
article 7 was under some incapacity; or the said
agreement is not valid under the law to which the
parties have subjected it or, failing any indication
thereon, under the law of the country where the
award was made; or
the party against whom the award is invoked was
not given proper notice of the appointment of an
b.
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Kenneth & King Hizon (3A)
c.
d.
arbitrator or of the arbitral proceedings or was
otherwise unable to present his case; or
the award deals with a dispute not contemplated by
or not falling within the terms of the submission to
arbitration, or it contains decisions on matters
beyond the scope of the submission to arbitration,
provided that, if the decisions on matters submitted
to arbitration can be separated from those not so
submitted, that part of the award which contains
decisions on matters submitted to arbitration may
be recognized and enforced; or
the composition of the arbitral tribunal or the
arbitral procedure was not in accordance with the
agreement of the parties or, failing such agreement,
was not in accordance with the law of the country
where the arbitration took place; or the award has
not yet become binding on the parties or has been
set aside or suspended by a court of the country in
which, or under the law of which, that award was
made; or
2.
If the court finds that:
a.
the subject-matter of the dispute is not capable of
settlement by arbitration under the law of this State;
or
the recognition or enforcement of the award would
be contrary to the public policy of this State (Article
36 of UNCITRAL Law).
b.
_____________________________________________
WHEREAS, among the implementing agencies of the CIAP is
the Philippine Domestic Construction Board (PDCB) which is
specifically authorized by Presidential Decree No. 1746 to
"adjudicate and settle claims and disputes in the
implementation of public and private construction contracts
and for this purpose, formulate and adopt the necessary rules
and regulations subject to the approval of the President";
Policy of the state
Sec. 1. Title. This Executive Order shall be known as the
"Construction Industry Arbitration Law".
Q: What is the policy of the law regarding the Philippine
construction industry?
A:
Sec. 2. Declaration of Policy. It is hereby declared to be the
policy of the State to encourage the early and expeditious
settlement of disputes in the Philippine construction
industry.
Creation of the Construction Industry Arbitration
Commission (CIAC)
Q: Which body has administrative supervision of the CIAC?
A: The CIAC shall be under the administrative supervision of
the Philippine Domestic Construction Board (PDCB).
EXECUTIVE ORDER NO. 1008
CREATING AN ARBITRATION MACHINERY IN THE
CONSTRUCTION INDUSTRY OF THE PHILIPPINES
February 4, 1985
WHEREAS, the construction industry provides employment to
a large segment of the national labor force and is a leading
contributor to the gross national product;
Sec. 3. Creation. There is hereby established in the CIAP a
body to be known as the Construction Industry Arbitration
Commission (CIAC). The CIAC shall be under the
administrative supervision of the Philippine Domestic
Construction Board (PDCB).
Jurisdiction of the CIAC
WHEREAS, it is of vital necessity that continued growth
towards national goals shall not be hindered by problems
arising from, or connected with, the construction industry;
Q: State the jurisdiction of the CIAC.
WHEREAS, there is a need to establish an arbitral machinery
to settle to such disputes expeditiously in order to maintain
and promote a healthy partnership between the government
and the private sector in the furtherance of national
development goals;
Sec. 4. Jurisdiction. The CIAC shall have original and exclusive
jurisdiction over disputes arising from, or connected with,
contracts entered into by parties involved in construction in
the Philippines:
WHEREAS, Presidential Decree No. 1746 created the
Construction Industry Authority of the Philippine (CIAP) to
exercise centralized authority for the optimum development
of the construction industry and to enhance the growth of
the local construction industry;
A:
a.
b.
c.
d.
e.
whether the dispute arises before or
after the completion of the contract, or
after the abandonment or breach thereof.
These disputes may involve government or
private contracts
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_____________________________________________
Q: What is the requisite for the CIAC to acquire jurisdiction?
4) To direct its officers and employees to perform such
functions as may be assigned to them from time to
time.
A: For the Board to acquire jurisdiction, the parties to a
dispute must agree to submit the same to voluntary
arbitration.
Q: What matters may be covered by the jurisdiction of the
CIAC?
Compensation
Q: How are the members of the CIAC compensated?
A:
A: The jurisdiction of the CIAC may include but is not limited
to:
a. violation of specifications for materials and
workmanship;
b. violation of the terms of agreement;
c. interpretation and/or application of contractual time
and delays;
d. maintenance and defects;
e. payment, default of employer or contractor and
changes in contract cost.
Q: What matter is excluded from the coverage?
A: Excluded from the coverage of this law are disputes arising
from employer-employee relationships which shall continue
to be covered by the Labor Code of the Philippines.
Composition and functions of the CIAC
Q: Discuss the composition of the CIAC?
A:
Sec. 7. Compensation of the Commission. The members of
1
the Commission shall receive such per diems [per day] and
allowances as may be fixed by the CIAP from time to time.
Term of office
Q: What is the term of office of the members of the CIAC?
A:
Sec. 8. Term. The term of office of the members of the
Commission shall be six (6) years; provided, however, that
of the Commission members first appointed, the chairman
shall hold office for six years; the other member for four (4)
years; and the third for two (2) years.
Q: What is the rule in case of vacancy?
A: The appointment to any vacancy in the Commission shall
only be for the unexpired portion of the term of the
predecessor.
Sec. 5. Composition of the Board. The Commission shall
consist of:
Quorum, deliberations
Q: What constitutes quorum?
a.
b.
a Chairman and
two (2) members, all to be appointed by the CIAP
Board upon recommendation by the members of the
PDCB.
A: The presence of a majority of the members of the
Commission shall constitute a quorum for the transaction of
business (Sec. 9).
Q: What are the functions of the CIAC?
Q: How are the deliberations of the Commission be arrived?
A:
A: The decisions of the Commission shall be arrived at by
majority vote (Sec. 10).
Sec. 6. Functions of the Commission. The Commission shall
perform, among others that may be conferred by law, the
following functions:
Secretariat
Q: What is the function of the CIAC Secretariat?
1) To formulate and adopt an arbitration program for
the construction industry;
2) To enunciate policies and prescribe rules and
procedures for construction arbitration;
3) To supervise the arbitration program, and exercise
such authority related thereto as regards the
appointment, replacement or challenging of arbitrators;
and
A:
Sec. 11. Secretariat. The Commission shall have a Secretariat
to be headed by an Executive Director who shall be
responsible for:
1
a specific amount of money that an organization gives an individual per day to cover
living and traveling expenses in connection with work done away from home
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Kenneth & King Hizon (3A)
a.
b.
c.
d.
receiving requests for arbitration, and other
pleadings,
for notifying the parties thereto; and,
for fixing and receiving filing fees, deposits, costs of
arbitration, administrative charges, and fees.
It shall be the duty of the Executive Director to notify
the parties of the awards made by the arbitrators.
NOTE: The Secretariat shall have among others a Publication
and a Training Division.
_____________________________________________
Q: What is the effect if the CIAC decides to appoint an
arbitral tribunal?
A: If the CIAC decides to appoint an Arbitral Tribunal, each
party may nominate one (1) arbitrator from the list of
arbitrators accredited by the CIAC for appointment and for
confirmation. The third arbitrator who is acceptable to both
parties confirmed in writing shall be appointed by the CIAC
and shall preside over the Tribunal (Sec. 14).
Qualities of arbitrator; non-permanent employment
Q: Who shall have the authority to appoint?
Q: What are the qualities that an arbitrator shall possess?
A:
A: Arbitration shall be men of distinction in whom the
business sector and the government can have confidence
(Sec. 14).
Sec. 12. Authority to appoint. The Commission is hereby
authorized to appoint the Executive Director, the
consultants, the arbitrators, as well as personnel and staff.
Authority to collect fees
Q: Does CIAC have the authority to collect fees?
A: Yes. The Commission is empowered to:
a. determine and collect fees, deposits, costs of
arbitration, as well as administrative and other
charges as may be necessary in the performance of
its functions and responsibilities.
b. The CIAC is also authorized to use its receipts and
deposits of funds to finance its operations subject to
the approval of the PDCB, the provisions of any law
to the contrary notwithstanding (Sec. 13).
Q: Are the arbitrators permanently employed by the CIAC?
A: They shall not be permanently employed with the CIAC.
Instead, they shall render services only when called to
arbitrate. For each dispute they settle, they shall be given
fees (Sec. 14).
Appointment of experts (Sec. 15)
Q: When can the CIAC appoint experts?
A: The services of technical or legal experts may be utilized in
the settlement of disputes if requested by:
a. any of the parties or
b. by the Arbitral Tribunal
c. both of the parties (Sec. 15)
Arbitrators (Sec. 14)
Q: How many arbitrators are required to settle a dispute?
A: Arbitrators. A sole arbitrator or three arbitrators may
settle a dispute (Sec. 14).
Q: What is the effect if the parties agree that the dispute
shall be settled by a sole arbitrator?
A: Where the parties agree that the dispute shall be settled
by a sole arbitrator, they may, by agreement, nominate him
from the list of arbitrators accredited by the CIAC for
appointment and confirmation (Sec. 14).
Q: What if they failed to agree as to the arbitrator?
A: If the parties fail to agree as to the arbitrator, the CIAC
taking into consideration the complexities and intricacies of
the dispute/s has the option to appoint a single arbitrator or
an Arbitral Tribunal (Sec. 14).
Q: Is there a need to confirm the appointment of the
experts?
A: If the request for an expert is done by either or by both of
the parties, it is necessary that the appointment of the expert
be confirmed by the Arbitral Tribunal (Sec. 15).
Expenses
Q: Who shall shoulder the expenses for the services of an
expert?
A: Whenever the parties request for the services of an expert,
they shall equally shoulder the expert's fees and expenses,
half of which shall be deposited with the Secretariat before
the expert renders service. When only one party makes the
request, it shall deposit the whole amount required (Sec. 15).
Arbitration expenses (Sec. 16)
Q: What are included in the arbitration expenses?
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Kenneth & King Hizon (3A)
A: Arbitration expenses shall include:
1. filing fee;
2. administrative charges,
3. arbitrator's fees;
4. fee and expenses of the expert, and
5. others which may be imposed by the CIAC (Sec. 16).
_____________________________________________
Q: When should the CIAC make a report?
A: The Commission shall within three (3) months after the
end of the fiscal year, submit its annual report to the CIAP. It
shall, likewise, submit such periodic reports as it may be
required from time to time.
Q: How are the administrative charges and the arbitrator’s
fees shall be computed?
A: The administrative charges and the arbitrator's fees shall
be computed on the basis of percentage of the sum in
dispute to be fixed in accordance with the Table of
Administrative Charges and Arbitrator's Fees (Sec. 16).
Deposit to cover arbitration expenses (Sec. 17)
Q: What should be the amount of the deposit?
Finality of the awards (Sec. 19)
Q: What is the nature of an arbitral award made by the
CIAC?
A:
GR: The arbitral award shall be binding upon the parties. It
shall be final and inappealable
XPN: Except on questions of law which shall be appealable to
the Supreme Court.
A:
Execution and enforcement of awards
Sec. 17. Deposit to Cover Arbitration Expenses. The CIAC shall
be authorized to fix the amount to be deposited which must
be equivalent to the expected arbitration expenses. Xxx
Q: To whom shall the deposit be paid?
Sec. 20. Execution and Enforcement of Awards. As soon as a
decision, order to award has become final and executory, the
Arbitral Tribunal or the single arbitrator with the occurrence
of the CIAC shall:
A: The deposit shall be paid to the Secretariat.
a.
b.
motu propio, or
on motion of any interested party
Q: When should the deposit be made?
A: Before arbitration proceedings shall commence.
issue a writ of execution requiring any sheriff or other proper
officer to execute said decision, order or award.
Q: Who shall make the payment?
A: Payment shall either be:
a. shared equally by the parties or
b. paid by any of them.
Rule-making power (Sec. 21)
Sec. 21. Rule-Making Power. The CIAC shall formulate and
adopt necessary rules and procedures for construction
arbitration.
Failure to pay; effect
Q: What if one party fails to contribute his share in the
deposit?
A: If one party fails to contribute his share in the deposit, the
other party must pay in full.
Republic Act No. 9285
Alternative Dispute Resolution Act of 2004
CHAPTER 6 - ARBITRATION OF CONSTRUCTION DISPUTES
Q: What law governs the arbitration concerning the
construction disputes?
Q: What if both parties fail to tender the required deposit?
A:
A: If both parties fail to tender the required deposit, the case
shall be considered dismissed but the parties shall still be
liable to pay one half (1/2) of the agreed administrative
charge.
SEC. 34. Arbitration of Construction Disputes: Governing
Law. - The arbitration of construction disputes shall be
governed by Executive Order No. 1008, otherwise known as
the Constitution Industry Arbitration Law.
Reports by the CIAC (Sec. 18)
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Q: Who has jurisdiction over the construction disputes?
_____________________________________________
A: Provided, That:
A: Construction disputes shall fall within the original and
exclusive jurisdiction of the Construction Industry Arbitration
Commission (Sec. 35).
1.
Coverage of the law
3.
2.
Q: Under Sec. 35, discuss the coverage of the law?
A: It shall include those between or among parties to, or who
are otherwise bound by, an arbitration agreement, directly or
by reference whether such parties are project owner,
contractor, subcontractor, quantity surveyor, bondsman or
issuer of an insurance policy in a construction project.
Q: Who has jurisdiction in case the construction dispute is
one of a commercial nature?
A: The Commission shall continue to exercise original and
exclusive jurisdiction over construction disputes although the
arbitration is "commercial" pursuant to Section 21 of this Act.
SEC. 21. Commercial Arbitration. - An arbitration is "commercial" if it covers
matters arising from all relationships of a commercial nature, whether
contractual or not. Relationships of a transactions: any trade transaction for
the supply or exchange of goods or services; distribution agreements;
construction of works; commercial representation or agency; factoring;
leasing, consulting; engineering; licensing; investment; financing; banking;
insurance; joint venture and other forms of industrial or business
cooperation; carriage of goods or passengers by air, sea, rail or road.
Q: How are arbitrators chosen?
A:
SEC. 36. Authority to Act as Mediator or Arbitrator. - By
written agreement of the parties to a dispute, an arbitrator
may act as mediator and a mediator may act as arbitrator. xxx
Q: May the parties agree that the settlement be in the form
of an arbitral award?
A: The parties may also agree in writing that, following a
successful mediation, the mediator shall issue the settlement
agreement in the form of an arbitral award (Sec. 36).
Appointment of foreign arbitrator
SEC. 37. Appointment of Foreign Arbitrator. - The
Construction Industry Arbitration Commission (CIAC) shall
promulgate rules to allow for the appointment of a foreign
arbitrator or co-arbitrator or chairman of a tribunal a person
who has not been previously accredited by CIAC.
Q: What are the requisites to allow the appointment of a
foreign arbitrator or co-arbitrator or chairman of a tribunal?
4.
the dispute is a construction dispute in which one
party is an international party
the person to be appointed agreed to abide by the
arbitration rules and policies of CIAC;
he/she is either coarbitrator upon the nomination of
the international party; or he/she is the common
choice of the two CIAC-accredited arbitrators first
appointed one of whom was nominated by the
international party; and
the foreign arbitrator shall be of different nationality
from the international party.
Other applicable provisions
SEC. 38. Applicability to Construction Arbitration. - The
provisions of Sections 17 (d) of Chapter 2, and Section 28 and
29 of this Act shall apply to arbitration of construction
disputes covered by this Chapter.
SEC. 17. Enforcement of Mediated Settlement Agreement. - The mediation
shall be guided by the following operative principles:
(d) The parties may agree in the settlement agreement that the mediator
shall become a sole arbitrator for the dispute and shall treat the settlement
agreement as an arbitral award which shall be subject to enforcement under
Republic Act No. 876, otherwise known as the Arbitration Law,
notwithstanding the provisions of Executive Order No. 1008 for mediated
dispute outside of the CIAC.
SEC. 28. Grant of Interim Measure of Protection. –
a.
It is not incompatible with an arbitration agreement for a party to
request, before constitution of the tribunal, from a Court an
interim measure of protection and for the Court to grant such
measure. After constitution of the arbitral tribunal and during
arbitral proceedings, a request for an interim measure of
protection or modification thereof, may be made with the arbitral
tribunal or to the extent that the arbitral tribunal has no power to
act or is unable to act effectively, the request may be made with
the Court. The arbitral tribunal is deemed constituted when the
sole arbitrator or the third arbitrator who has been nominated,
has accepted the nomination and written communication of said
nomination and acceptance has been received by the party
making request.
b. The following rules on interim or provisional relief shall be
observed:
1.
Any party may request that provision relief be granted
against the adverse party:
2.
Such relief may be granted:
(i) to prevent irreparable loss or injury:
(ii) to provide security for the performance
of any obligation;
(iii) to produce or preserve any evidence; or
(iv) to compel any other appropriate act or
omission.
3. The order granting provisional relief may be conditioned
upon the provision of security or any act or omission
specified in the order.
4. Interim or provisional relief is requested by written
application transmitted by reasonable means to the Court or
arbitral tribunal as the case may be and the party against
whom the relief is sought, describing in appropriate detail
the precise relief, the party against whom the relief is
requested, the grounds for the relief, and evidence
supporting the request.
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Kenneth & King Hizon (3A)
5.
6.
7.
The order shall be binding upon the parties.
Either party may apply with the Court for assistance in
Implementing or enforcing an interim measure ordered by
an arbitral tribunal.
A party who does not comply with the order shall be liable
for all damages resulting from noncompliance, including all
expenses, and reasonable attorney's fees, paid in obtaining
the order's judicial enforcement.
SEC. 29. Further Authority for Arbitrator to Grant Interim Measure of
Protection. - Unless otherwise agreed by the parties, the arbitral tribunal
may, at the request of a party, order any party to take such interim measures
of protection as the arbitral tribunal may consider necessary in respect of the
subject matter of the dispute following the rules in Section 28, paragraph 2.
Such interim measures may include but shall not be limited to preliminary
injuction directed against a party, appointment of receivers or detention,
preservation, inspection of property that is the subject of the dispute in
arbitration. Either party may apply with the Court for assistance in
implementing or enforcing an interim measures ordered by an arbitral
tribunal.
Duty of the court to dismiss (Sec. 39)
Q: What is the duty of the court in case a construction
dispute has been filed before it?
A: A regional trial court which a construction dispute is filed
shall, upon becoming aware, not later than the pretrial
conference, that the parties had entered into an arbitration
to be conducted by the CIAC, unless both parties, assisted by
their respective counsel, shall submit to the regional trial
court a written agreement exclusive for the Court, rather
than the CIAC, to resolve the dispute.
CHAPTER 7 - JUDICIAL REVIEW OF ARBITRAL AWARDS
A. DOMESTIC AWARDS
SEC. 40. Confirmation of Award. - The confirmation of a
domestic arbitral award shall be governed by Section 23 of
R.A. 876.
_____________________________________________
A: A CIAC arbitral award need not be confirmed by the
regional trial court to be executory as provided under E.O.
No. 1008.
Vacation of award
SEC. 41. Vacation Award. - A party to a domestic arbitration
may question the arbitral award with the appropriate
regional trial court in accordance with the rules of
procedure to be promulgated by the Supreme Court only on
those grounds enumerated in Section 25 of Republic Act No.
876. Any other ground raised against a domestic arbitral
award shall be disregarded by the regional trial court.
Q: Under Sec. 25 of RA 876, what are the grounds for the
modification of the award?
A: In any one of the following cases, the court must make an
order modifying or correcting the award, upon the
application of any party to the controversy which was
arbitrated:
1. Where there was an evident miscalculation of
figures, or an evident mistake in the description of
any person, thing or property referred to in the
award; or
2. Where the arbitrators have awarded upon a matter
not submitted to them, not affecting the merits of
the decision upon the matter submitted; or
3. Where the award is imperfect in a matter of form
not affecting the merits of the controversy, and if it
had been a commissioner's report, the defect could
have been amended or disregarded by the court.
4. The order may modify and correct the award so as to
effect the intent thereof and promote justice
between the parties.
Confirmation of award
Q: What is the effect of a confirmed domestic arbitral
award?
A: A domestic arbitral award when confirmed shall be
enforced in the same manner as final and executory decisions
of the Regional Trial Court.
Q: What court has jurisdiction to confirm the award?
A: The confirmation of a domestic award shall be made by
the regional trial court in accordance with the Rules of
Procedure to be promulgated by the Supreme Court.
B. FOREIGN ARBITRAL AWARDS
Recognition and enforcement
Q: What will govern the recognition and enforcement of
arbitral awards?
A: The New York Convention shall govern the recognition and
enforcement of arbitral awards covered by the said
Convention (Sec. 42, Application of the New York Convention).
Q: Should the CIAC arbitral award be confirmed to be
executory?
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_____________________________________________
Q: Where should the recognition and enforcement of such
arbitral award be made?
Q: May the court recognize enforce a non-convention award
as a convention award?
A: The recognition and enforcement of such arbitral awards
shall be filled with regional trial court in accordance with the
rules of procedure to be promulgated by the Supreme Court.
A: The Court may, grounds of:
a. comity and
b. reciprocity, recognize and enforce a non-convention
award as a convention award.
Requirements
Foreign arbitral award not a foreign judgment (Sec. 44)
Q: What are the requirements for the application of the
enforcement of the award?
Q:What is the effect when a foreign arbitral award is
confirmed by a court of foreign country?
A:
1.
2.
the party relying on the award or applying for its
enforcement shall file with the court the original or
authenticated copy of the award and
the arbitration agreement
NOTE: If the award or agreement is not made in any of the
official languages, the party shall supply a duly certified
translation thereof into any of such languages.
A: A foreign arbitral award when confirmed by a court of a
foreign country, shall be recognized and enforced as a foreign
arbitral award and not a judgment of a foreign court.
Q: How can a foreign arbitral award confirmed by the
regional trial court be enforced?
A: It shall be enforced in the same manner as final and
executory decisions of courts of law of the Philippines.
Rejection of a foreign arbitral award (Sec. 45)
3.
The applicant shall establish that the country in
which foreign arbitration award was made is a party
to the New York Convention.
Q: What if the application is for the rejection or suspension
of the enforcement of the award?
A: If the application for rejection or suspension of
enforcement of an award has been made, the regional trial
court may, if it considers it proper, vacate its decision and
may also, on the application of the party claiming recognition
or enforcement of the award, order the party to provide
appropriate security.
Recognition and Enforcement of Foreign Arbitral Awards
Not Covered by the New York Convention
Q: What is the rule regarding the recognition and
enforcement of foreign arbitral awards not covered by the
New York Convention?
Q: How can a party oppose the application for recognition
and enforcement of the arbitral award?
A: A party to a foreign arbitration proceeding may oppose an
application for recognition and enforcement of the arbitral
award in accordance with the procedural rules to be
promulgated by the Supreme Court only on those grounds
enumerated under Article V of the New York Convention. Any
other ground raised shall be disregarded by the regional trial
court.
Q: Under the Article V of the New York Convention, what
are the grounds that can be raised for the opposition?
A:
1. Recognition and enforcement of the award may be
refused, at the request of the party against whom it is
invoked, only if that party furnishes to the competent
authority where the recognition and enforcement is sought,
proof that:
A:
a.
SEC. 43. Recognition and Enforcement of Foreign Arbitral
Awards Not Covered by the New York Convention. - The
recognition and enforcement of foreign arbitral awards not
covered by the New York Convention shall be done in
accordance with procedural rules to be promulgated by the
Supreme Court. The Court may, grounds of comity and
reciprocity, recognize and enforce a nonconvention award
as a convention award.
b.
The parties to the agreement referred to in article II
were, under the law applicable to them, under some
incapacity, or the said agreement is not valid under
the law to which the parties have subjected it or,
failing any indication thereon, under the law of the
country where the award was made; or
The party against whom the award is invoked was
not given proper notice of the appointment of the
arbitrator or of the arbitration proceedings or was
otherwise unable to present his case; or
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c.
d.
e.
The award deals with a difference not contemplated
by or not falling within the terms of the submission
to arbitration, or it contains decisions on matters
beyond the scope of the submission to arbitration,
provided that, if the decisions on matters submitted
to arbitration can be separated from those not so
submitted, that part of the award which contains
decisions on matters submitted to arbitration may
be recognized and enforced; or
The composition of the arbitral authority or the
arbitral procedure was not in accordance with the
agreement of the parties, or, failing such agreement,
was not in accordance with the law of the country
where the arbitration took place; or
The award has not yet become binding, on the
parties, or has been set aside or suspended by a
competent authority of the country in which, or
under the law of which, that award was made.
_____________________________________________
for vacation, setting aside, correction or modification of an
arbitral award?
A: Proceedings for recognition and enforcement of an
arbitration agreement or for vacation, setting aside,
correction or modification of an arbitral award, and any
application with a court for arbitration assistance and
supervision shall be deemed as special proceedings.
Q: Where should the same be filed?
A: It shall be filled with the regional trial court:
a.
b.
c.
d.
2. Recognition and enforcement of an arbitral award may also
be refused if the competent authority in the country where
recognition and enforcement is sought finds that:
a.
b.
The subject matter of the difference is not capable
of settlement by arbitration under the law of that
country; or
The recognition or enforcement of the award would
be contrary to the public policy of that country.
Appeal from court on decisions on arbitral awards
SEC. 46. Appeal from Court Decisions on Arbitral Awards. - A
decision of the regional trial court:
a. confirming,
b. vacating,
c. setting aside,
d. modifying or correcting an arbitral award
may be appealed to the Court of Appeals in accordance with
the rules of procedure to be promulgated by the Supreme
Court.
Q: What is required from the party who appeals from the
judgment of the court confirming an arbitral award?
A: The losing party who appeals from the judgment of the
court confirming an arbitral award shall required by the
appealant court to post counterbond executed in favor of the
prevailing party equal to the amount of the award in
accordance with the rules to be promulgated by the Supreme
Court (Sec. 46).
Venue and jurisdiction (Sec. 47)
Q: What is the character of the proceedings for the
recognition and enforcement of an arbitration agreement or
where arbitration proceedings are conducted;
where the asset to be attached or levied upon, or
the act to be enjoined is located;
where any of the parties to the dispute resides or
has his place of business; or
in the National Judicial Capital Region, at the option
of the applicant.
Notice of proceeding to parties (Sec. 48)
SEC. 48. Notice of Proceeding to Parties. - In a special
proceeding for recognition and enforcement of an arbitral
award, the Court shall send notice to the parties at their
address of record in the arbitration, or if any party cannot
be served notice at such address, at such party's last known
address. The notice shall be sent at least fifteen (15) days
before the date set for the initial hearing of the application.
CONVENTION ON THE RECOGNITION AND ENFORCEMENT
OF FOREIGN ARBITRAL AWARDS
Article I
Q: State the application or scope of this convention?
A: This Convention shall apply to the recognition and
enforcement of arbitral awards made in the territory of a
State other than the State where the recognition and
enforcement of such awards are sought, and arising out of
differences between persons, whether physical or legal. It
shall also apply to arbitral awards not considered as domestic
awards in the State where their recognition and enforcement
are sought.
Q: What do you mean by arbitral awards under the
Convention?
A: It shall include not only awards made by arbitrators
appointed for each case but also those made by permanent
arbitral bodies to which the parties have submitted.
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NOTE: When signing, ratifying or acceding to this Convention,
or notifying extension under article X hereof, any State may
on the basis of reciprocity declare that it will apply the
Convention to the recognition and enforcement of awards
made only in the territory of another Contracting State. It
may also declare that it will apply the Convention only to
differences arising out of legal relationships, whether
contractual or not, which are considered as commercial
under the national law of the State making such declaration.
Article II
Each Contracting State shall recognize an agreement in
writing under which the parties undertake to submit to
arbitration all or any differences which have arisen or which
may arise between them in respect of a defined legal
relationship, whether contractual or not, concerning a subject
matter capable of settlement by arbitration.
Q: What does agreement in writing mean?
A: The term "agreement in writing" shall include an arbitral
clause in a contract or an arbitration agreement, signed by
the parties or contained in an exchange of letters or
telegrams.
Q: When can the court refer the parties to arbitration?
A: The court of a Contracting State, when seized of an action
in a matter in respect of which the parties have made an
agreement within the meaning of this article, shall, at the
request of one of the parties, refer the parties to arbitration,
unless it finds that the said agreement is:
1.
2.
3.
null and void,
inoperative or
incapable of being performed.
_____________________________________________
A:
(a) The duly authenticated original award or a duly
certified copy thereof;
(b) The original agreement referred to in article II or a
duly certified copy thereof.
NOTE: If the said award or agreement is not made in an
official language of the country in which the award is relied
upon, the party applying for recognition and enforcement of
the award shall produce a translation of these documents
into such language. The translation shall be certified by an
official or sworn translator or by a diplomatic or consular
agent.
Article V
Q: Under what instances can the recognition and
enforcement of the award be refused?
A: Recognition and enforcement of the award may be
refused, at the request of the party against whom it is
invoked, only if that party furnishes to the competent
authority where the recognition and enforcement is sought,
proof that:
(a) The parties to the agreement referred to in article II
were, under the law applicable to them, under some
incapacity, or the said agreement is not valid under the
law to which the parties have subjected it or, failing any
indication thereon, under the law of the country where
the award was made; or
Article III
(b) The party against whom the award is invoked was not
given proper notice of the appointment of the arbitrator
or of the arbitration proceedings or was otherwise
unable to present his case; or
Each Contracting State shall recognize arbitral awards as
binding and enforce them in accordance with the rules of
procedure of the territory where the award is relied upon,
under the conditions laid down in the following articles.
There shall not be imposed substantially more onerous
conditions or higher fees or charges on the recognition or
enforcement of arbitral awards to which this Convention
applies than are imposed on the recognition or enforcement
of domestic arbitral awards.
(c) The award deals with a difference not contemplated
by or not falling within the terms of the submission to
arbitration, or it contains decisions on matters beyond
the scope of the submission to arbitration, provided that,
if the decisions on matters submitted to arbitration can
be separated from those not so submitted, that part of
the award which contains decisions on matters
submitted to arbitration may be recognized and
enforced; or
Article IV
(d) The composition of the arbitral authority or the
arbitral procedure was not in accordance with the
agreement of the parties, or, failing such agreement, was
not in accordance with the law of the country where the
arbitration took place; or
Q: To obtain the recognition and enforcement mentioned in
the preceding article, what should the party applying for
recognition and enforcement, at the time of the application,
shall supply:
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(e) The award has not yet become binding on the parties,
or has been set aside or suspended by a competent
authority of the country in which, or under the law of
which, that award was made.
2. Recognition and enforcement of an arbitral award may also
be refused if the competent authority in the country where
recognition and enforcement is sought finds that:
_____________________________________________
DEFINITIONS AND RULES OF INTERPRETATION (Article 2)
Q: What is arbitration?
A: It means any arbitration whether or not administered by a
permanent arbitral institution.
Q: What is arbitral tribunal?
(a) The subject matter of the difference is not capable of
settlement by arbitration under the law of that country;
or
A: It means the sole arbitrator or a panel of arbitrators.
(b) The recognition or enforcement of the award would
be contrary to the public policy of that country.
A:
Q: What is the rule of interpretation with regard to this law?
1.
UNCITRAL MODEL LAW ON
INTERNATIONAL COMMERCIAL
ARBITRATION
2.
GENERAL PROVISIONS (Article 1)
In the interpretation of this Law, regard is to be had
to its international origin and to the need to
promote uniformity in its application and the
observance of good faith;
Questions concerning matters governed by this Law
which are not expressly settled in it are to be settled
in conformity with the general principles on which
this Law is based.
Q: When is arbitration considered as international?
Q: What are the factors to be considered?
A: Arbitration is international if:
A:
a.
the parties to an arbitration agreement have, at the time
of the conclusion of that agreement, their places of
business in different States; or
one of the following places is situated outside the State
in which the parties have their places of business:
b.
i.
ii.
c.
the place of arbitration if determined in, or pursuant
to, the arbitration agreement;
any place where a substantial part of the obligations
of the commercial relationship is to be performed or
the place with which the subject-matter of the
dispute is most closely connected; or
The parties have expressly agreed that the subject
matter of the arbitration agreement relates to more than
one country.
Q: Where is the place of business if the party has more than
one place of business?
1.
2.
3.
International origin;
Uniformity in application; and
Observance of good faith.
ARBITRATION AGREEMENT (Article 7)
Q: What is an arbitration agreement?
A: It is an agreement by the parties to submit to arbitration
all or certain disputes which have arisen or which may arise
between them in respect of a defined legal relationship,
whether contractual or not. An arbitration agreement may
be in the form of an arbitration clause in a contract or in the
form of a separate agreement.
Q: What is the form of such agreement?
A: It must be in writing.
Q: When is an agreement considered written?
A: It is that which has the closest relationship to the
arbitration agreement.
Q: What if the party has no place of business?
A: If a party does not have a place of business, reference is to
be made to his habitual residence.
A: An arbitration agreement is in writing if its content is
recorded in any form, whether or not the arbitration
agreement or contract has been concluded orally, by
conduct, or by other means.
Arbitration Agreement
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“Arbitration agreement” is an agreement by the parties to
submit to arbitration all or certain disputes which have arisen
or which may arise between them in respect of a defined
legal relationship, whether contractual or not.
_____________________________________________
A:
1.
Q: When can a court acquire jurisdiction over the case?
When can it refer the parties to arbitration?
A: A court before which an action is brought in a matter
which is the subject of an arbitration agreement shall, if a
party so requests not later than when submitting his fist
statement on the substance of the dispute, refers the parties
to arbitration.
Q: Under what instances can the court set aside the
agreement?
2.
The parties are free to determine the number of
arbitrators.
Failing such determination, the number of
arbitrators shall be three.
Q: What is the disqualification in the appointment of
arbitrators?
A: No person shall be precluded by reason of his nationality
from acting as an arbitrator, unless otherwise agreed by the
parties (Article 11).
NOTE: The parties are free to agree on the procedure of
appointing the arbitrator or arbitrators.
A: If the Court finds that the agreement is:
Q: What are the rules in the appointment of arbitrators?
1.
2.
3.
Null and void;
Inoperative; or
incapable of being performed (Article 8).
A:
Appointment of 3 arbitrators (Article 11)
Q: Pending the determination of such issue, may the
arbitration proceedings commenced or continued?
A: Where an action referred to in paragraph (1) of this article
has been brought, arbitral proceedings may nevertheless be
commenced or continued, and an award may be made, while
the issue is pending before the court.
R.A. No. 876
In an arbitration with three arbitrators, each party shall
appoint one arbitrator, and the two arbitrators thus
appointed shall appoint the third arbitrator; if a party fails to
appoint the arbitrator within thirty days of receipt of a
request to do so from the other party, or if the two
arbitrators fail to agree on the third arbitrator within thirty
days of their appointment, the appointment shall be made,
upon request of a party, by the court or other authority
specified in article 6;
NOTE: In our arbitration law, the court proceedings are
suspended:
Section 7. Stay of civil action.
- If any suit or
proceeding be brought upon an issue arising out of an
agreement providing for the arbitration thereof, the court in
which such suit or proceeding is pending, upon being
satisfied that the issue involved in such suit or proceeding is
referable to arbitration, shall stay the action or proceeding
until an arbitration has been had in accordance with the
terms of the agreement: Provided, That the applicant, for
the stay is not in default in proceeding with such arbitration.
Interim measures by court
It is not incompatible with an arbitration agreement for a
party to request, before or during arbitral proceedings, from
a court an interim measure of protection and for a court to
grant such measure (Article 9).
COMPOSITION OF ARBITRAL TRIBUNAL (Article 10)
Q: What are the rules regarding the number of arbitrators?
Appointment of sole arbitrator (Article 11)
In an arbitration with a sole arbitrator, if the parties are
unable to agree on the arbitrator, he shall be appointed,
upon request of a party, by the court or other authority
specified in article 6.
Q: Under what instances may a party request a court or
other authority to take the necessary measure?
A:
(a) a party fails to act as required under such procedure,
or
(b) the parties, or two arbitrators, are unable to reach
an agreement expected of them under such
procedure, or
(c) a third party, including an institution, fails to
perform any function entrusted to it under such
procedure.
Q: Is the court decision subject to appeal?
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A: No.
Q: What are the considerations in the appointment of
arbitrators?
A: The court or other authority, in appointing an arbitrator,
shall have due regard to any qualifications required of the
arbitrator by the agreement of the parties and to such
considerations as are likely to secure the appointment of an
independent and impartial arbitrator and, in the case of a
sole or third arbitrator, shall take into account as well the
advisability of appointing an arbitrator of a nationality other
than those of the parties.
_____________________________________________
independence. An arbitrator, from the time of his
appointment and throughout the arbitral
proceedings, shall without delay disclose any such
circumstances to the parties unless they have
already been informed of them by him.
(2) An arbitrator may be challenged only if
circumstances exist that give rise to justifiable
doubts as to his impartiality or independence, or if
he does not possess qualifications agreed to by the
parties. A party may challenge an arbitrator
appointed by him, or in whose appointment he has
participated, only for reasons of which he becomes
aware after the appointment has been made.
Challenge Procedure (Article 13)
R.A. No. 876
Section 8. Appointment of arbitrators.
- If, in the contract for
arbitration or in the submission described in section two, provision is made
for a method of naming or appointing an arbitrator or arbitrators, such
method shall be followed; but if no method be provided therein the Court
of First Instance shall designate an arbitrator or arbitrators.
The Court of First Instance shall appoint an arbitrator or arbitrators, as the
case may be, in the following instances:
(a)
If the parties to the contract or submission are unable to agree
upon a single arbitrator; or
(b)
If an arbitrator appointed by the parties is unwilling or unable to
serve, and his successor has not been appointed in the manner in which he
was appointed; or
(c)
If either party to the contract fails or refuses to name his
arbitrator within fifteen days after receipt of the demand for arbitration; or
(d)
If the arbitrators appointed by each party to the contract, or
appointed by one party to the contract and by the proper Court, shall fail to
agree upon or to select the third arbitrator.
(e)
The court shall, in its discretion appoint one or three arbitrators,
according to the importance of the controversy involved in any of the
preceding cases in which the agreement is silent as to the number of
arbitrators.
(f)
Arbitrators appointed under this section shall either accept or
decline their appointments within seven days of the receipt of their
appointments. In case of declination or the failure of an arbitrator or
arbitrators to duly accept their appointments the parties or the court, as
the case may be, shall proceed to appoint a substitute or substitutes for the
arbitrator or arbitrators who decline or failed to accept his or their
appointments.
Grounds for challenge (Article 12)
Q: What are the grounds for challenge of arbitrators?
The parties are free to agree on a procedure for challenging
an arbitrator.
Q: What is the procedure to be applied in case he parties fail
to agree on the procedure?
A: Failing such agreement, a party who intends to challenge
an arbitrator shall, within fifteen days after becoming aware
of the constitution of the arbitral tribunal or after becoming
aware of any circumstance referred to in article 12(2), send a
written statement of the reasons for the challenge to the
arbitral tribunal. Unless the challenged arbitrator withdraws
from his office or the other party agrees to the challenge, the
arbitral tribunal shall decide on the challenge.
Q: Which body has jurisdiction over the issue?
A: The arbitral tribunal shall rule on the challenge.
Q: What if the challenge was unsuccessful?
A: The challenging party may request, within thirty days after
having received notice of the decision rejecting the
challenge, the court or other authority specified in article 6 to
decide on the challenge, which decision shall be subject to no
appeal; while such a request is pending, the arbitral tribunal,
including the challenged arbitrator, may continue the arbitral
proceedings and make an award.
Q: What is the effect of the challenge on the proceedings?
Should the arbitration proceedings be suspended?
A: No, the proceedings shall proceed and can make an award
(Article 13 (3)).
A:
R.A. No. 876
(1) When a person is approached in connection with his
possible appointment as an arbitrator, he shall
disclose any circumstances likely to give rise to
justifiable doubts as to his impartiality or
Section 11. Challenge of arbitrators.
- The arbitrators
may be challenged only for the reasons mentioned in the
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preceding section which may have arisen after the arbitration
agreement or were unknown at the time of arbitration.
The challenge shall be made before them.
If they do not yield to the challenge, the challenging party
may renew the challenge before the Court of First Instance of
the province or city in which the challenged arbitrator, or, any
of them, if there be more than one, resides.
Q: Under our Arbitration Law, what is the effect of the
challenge on the arbitration proceedings?
A: While the challenging incident is discussed before the
court, the hearing or arbitration shall be suspended, and it
shall be continued immediately after the court has delivered
an order on the challenging incident.
Failure or impossibility to act (Art. 14)
If an arbitrator becomes de jure or de facto unable to
perform his functions or for other reasons fails to act without
undue delay, his mandate terminates if he withdraws from
his office or if the parties agree on the termination.
Otherwise, if a controversy remains concerning any of these
grounds, any party may request the court or other authority
specified in article 6 to decide on the termination of the
mandate, which decision shall be subject to no appeal.
Q: Does the withdrawal from office of the arbitrator or if the
parties agree to terminate his/her mandate, mean
acceptance of the validity of the ground?
A: No.
Appointment of substitute arbitrator (Article 15)
Q: How is the substitute arbitrator to be appointed?
A: Where the mandate of an arbitrator terminates under
article 13 or 14 or because of his withdrawal from office for
any other reason or because of the revocation of his mandate
by agreement of the parties or in any other case of
termination of his mandate, a substitute arbitrator shall be
appointed according to the rules that were applicable to the
appointment of the arbitrator being replaced.
_____________________________________________
Kompetenz Principle or Separability Principle
Q: What is the effect of the decision of the arbitral tribunal
regarding the contract on the arbitration clause? Does the
invalidation of the contract ipso jure invalidate the
arbitration clause?
A: An arbitration clause which forms part of a contract shall
be treated as an agreement independent of the other terms
of the contract. A decision by the arbitral tribunal that the
contract is null and void shall not entail ipso jure the invalidity
of the arbitration clause.
Q: When should the issue of jurisdiction be raised?
A: A plea that the arbitral tribunal does not have jurisdiction
shall be raised not later than the submission of the statement
of defense.
NOTE: A party is not precluded from raising such a plea by the
fact that he has appointed, or participated in the
appointment of, an arbitrator.
Q: When should the issue of the tribunal exceeding its scope
be raised?
A: A plea that the arbitral tribunal is exceeding the scope of
its authority shall be raised as soon as the matter alleged to
be beyond the scope of its authority is raised during the
arbitral proceedings. The arbitral tribunal may, in either case,
admit a later plea if it considers the delay justified.
NOTE: The arbitral tribunal may rule on a plea referred to in
paragraph (2) of this article either as a preliminary question
or in an award on the merits. If the arbitral tribunal rules as a
preliminary question that it has jurisdiction, any party may
request, within thirty days after having received notice of
that ruling, the court specified in article 6 to decide the
matter, which decision shall be subject to no appeal; while
such a request is pending, the arbitral tribunal may continue
the arbitral proceedings and make an award.
INTERIM MEASURES AND PRELIMINARY ORDERS
Power of arbitral tribunal to order interim measures
(Article 17)
JURISDICTION OF ARBITRAL TRIBUNAL
Q: Which body has jurisdiction over the competence of the
tribunal vis-à-vis its jurisdiction? May the tribunal itself rule
on its own jurisdiction?
A: The arbitral tribunal may rule on its own jurisdiction,
including any objections with respect to the existence or
validity of the arbitration agreement.
Unless otherwise agreed by the parties, the arbitral tribunal
may, at the request of a party, grant interim measures.
Q: What is an interim measure?
A: An interim measure is any temporary measure, whether in
the form of an award or in another form, by which, at any
time prior to the issuance of the award by which the dispute
is finally decided, the arbitral tribunal orders a party to:
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(a) Maintain or restore the status quo pending
determination of the dispute;
(b) Take action that would prevent, or refrain from
taking action that is likely to cause, current or
imminent harm or prejudice to the arbitral process
itself;
(c) Provide a means of preserving assets out of which a
subsequent award may be satisfied; or
(d) Preserve evidence that may be relevant and material
to the resolution of the dispute.
R.A 9285
_____________________________________________
(a) Harm not adequately reparable by an award of damages
is likely to result if the measure is not ordered, and such
harm substantially outweighs the harm that is likely to
result to the party against whom the measure is directed
if the measure is granted; and
(b) There is a reasonable possibility that the requesting
party will succeed on the merits of the claim. The
determination on this possibility shall not affect the
discretion of the arbitral tribunal in making any
subsequent determination.
Applications for preliminary orders and conditions for
granting preliminary orders (Article 17.B)
SEC. 28. Grant of Interim Measure of Protection. (a) It is not incompatible with an arbitration agreement for a party to
request, before constitution of the tribunal, from a Court an interim measure
of protection and for the Court to grant such measure. After constitution of
the arbitral tribunal and during arbitral proceedings, a request for an interim
measure of protection or modification thereof, may be made with the
arbitral tribunal or to the extent that the arbitral tribunal has no power to act
or is unable to act effectively, the request may be made with the Court. The
arbitral tribunal is deemed constituted when the sole arbitrator or the third
arbitrator who has been nominated, has accepted the nomination and
written communication of said nomination and acceptance has been
received by the party making request.
Unless otherwise agreed by the parties, a party may, without
notice to any other party, make a request for an interim
measure together with an application for a preliminary order
directing a party not to frustrate the purpose of the interim
measure requested.
The arbitral tribunal may grant a preliminary order provided it
considers that prior disclosure of the request for the interim
measure to the party against whom it is directed risks
frustrating the purpose of the measure.
(b) The following rules on interim or provisional relief shall be observed:
(1) Any party may request that provision relief be granted against the
adverse party:
(2) Such relief may be granted:
(i) to prevent irreparable loss or injury:
(ii) to provide security for the performance of any obligation;
(iii) to produce or preserve any evidence; or
(iv) to compel any other appropriate act or omission.
(3) The order granting provisional relief may be conditioned upon the
provision of security or any act or omission specified in the order.
(4) Interim or provisional relief is requested by written application
transmitted by reasonable means to the Court or arbitral tribunal as the case
may be and the party against whom the relief is sought, describing in
appropriate detail the precise relief, the party against whom the relief is
requested, the grounds for the relief, and evidence supporting the request.
Specific regime for preliminary orders (Article 17 C)
Immediately after the arbitral tribunal has made a
determination in respect of an application for a preliminary
order, the arbitral tribunal shall give notice to all parties of
the request for the interim measure, the application for the
preliminary order, the preliminary order, if any, and all other
communications, including by indicating the content of any
oral communication, between any party and the arbitral
tribunal in relation thereto.
At the same time, the arbitral tribunal shall give an
opportunity to any party against whom a preliminary order is
directed to present its case at the earliest practicable time.
The arbitral tribunal shall decide promptly on any objection
to the preliminary order.
(5) The order shall be binding upon the parties.
(6) Either party may apply with the Court for assistance in Implementing or
enforcing an interim measure ordered by an arbitral tribunal.
Q: What is the termination period of the preliminary order?
Conditions for granting interim measures (Article 17. A)
A: A preliminary order shall expire after twenty days from the
date on which it was issued by the arbitral tribunal. However,
the arbitral tribunal may issue an interim measure adopting
or modifying the preliminary order, after the party against
whom the preliminary order is directed has been given notice
and an opportunity to present its case.
Q: What are the conditions to be satisfied by the requesting
party before the interim measure be granted?
Q: Is the preliminary order subject to enforcement by the
court?
(7) A party who does not comply with the order shall be liable for all
damages resulting from noncompliance, including all expenses, and
reasonable attorney's fees, paid in obtaining the order's judicial
enforcement.
A:
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A: No, a preliminary order shall be binding on the parties but
shall not be subject to enforcement by a court.
Q: Does it constitute an award?
_____________________________________________
caused by the measure or the order to any party if the
arbitral tribunal later determines that, in the circumstances,
the measure or the order should not have been granted. The
arbitral tribunal may award such costs and damages at any
point during the proceedings.
A: No, such a preliminary order does not constitute an award.
Recognition and enforcement of interim measures
(Article 17 H)
Interim measures:
Modification, suspension, termination (Article 17 D)
Q: May the court or tribunal modify. Suspend or terminate
an interim measure?
A: The arbitral tribunal may modify, suspend or terminate an
interim measure or a preliminary order it has granted, upon
application of any party or, in exceptional circumstances and
upon prior notice to the parties, on the arbitral tribunal’s own
initiative.
Provision of security (Article 17 E)
Q: Is security required in case of provisional remedies?
Q: What is the rule regarding the Recognition and
enforcement of interim measures?
A: An interim measure issued by an arbitral tribunal shall be
recognized as binding and, unless otherwise provided by the
arbitral tribunal, enforced upon application to the competent
court, irrespective of the country in which it was issued,
subject to the provisions of article 17.
NOTE: The party who is seeking or has obtained recognition
or enforcement of an interim measure shall promptly inform
the court of any termination, suspension or modification of
that interim measure.
A: The arbitral tribunal may require the party requesting an
interim measure to provide appropriate security in
connection with the measure.
The arbitral tribunal shall require the party applying for a
preliminary order to provide security in connection with the
order unless the arbitral tribunal considers it inappropriate or
unnecessary to do so.
Disclosure (Article 17 F)
Grounds for refusing recognition or enforcement
(Article 17 I)
Q: When may the recognition or enforcement of interim
measure be refused?
A: Recognition or enforcement of an interim measure may be
refused only:
a.
Q: What is the rule on disclosure of material changes on the
circumstances for application of the provisional remedy?
At the request of the party against whom it is invoked if
the court is satisfied that:
1.
A: The arbitral tribunal may require any party promptly to
disclose any material change in the circumstances on the
basis of which the measure was requested or granted.
2.
The party applying for a preliminary order shall disclose to
the arbitral tribunal all circumstances that are likely to be
relevant to the arbitral tribunal’s determination whether to
grant or maintain the order, and such obligation shall
continue until the party against whom the order has been
requested has had an opportunity to present its case.
Thereafter, paragraph (1) of this article shall apply.
3.
Costs and Damages (Article 17 G)
Q: What if the other party suffers damages as a
consequence of the provisional remedy?
A: The party requesting an interim measure or applying for a
preliminary order shall be liable for any costs and damages
b.
Such refusal is warranted on the grounds set forth in
article 36(1)(a)(i), (ii), (iii) or (iv); or
The arbitral tribunal’s decision with respect to the
provision of security in connection with the interim
measure issued by the arbitral tribunal has not been
complied with; or
The interim measure has been terminated or
suspended by the arbitral tribunal or, where so
empowered, by the court of the State in which the
arbitration takes place or under the law of which
that interim measure was granted; or
If the court finds that:
1.
he interim measure is incompatible with the powers
conferred upon the court unless the court decides to
reformulate the interim measure to the extent
necessary to adapt it to its own powers and
procedures for the purposes of enforcing that
interim measure and without modifying its
substance; or
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Kenneth & King Hizon (3A)
2.
Any of the grounds set forth in article 36(1)(b)(i) or
apply to the recognition and enforcement of the
interim measure.
_____________________________________________
A:
1.
Q: May the court where the recognition or enforcement is
sought make that determination or review of the substance
of the interim measure?
2.
The parties are free to agree on the place of
arbitration.
Failing such agreement, the place of arbitration shall
be determined by the arbitral tribunal having regard
to the circumstances of the case, including the
convenience of the parties.
A: Any determination made by the court on any ground in
paragraph (1) of this article shall be effective only for the
purposes of the application to recognize and enforce the
interim measure. The court where recognition or
enforcement is sought shall not, in making that
determination, undertake a review of the substance of the
interim measure.
NOTE: The arbitral tribunal may, unless otherwise agreed by
the parties, meet at any place it considers appropriate for
consultation among its members, for hearing witnesses,
experts or the parties, or for inspection of goods, other
property or documents.
Court-ordered interim measures
Commencement of arbitral proceedings (Article 21)
A court shall have the same power of issuing an interim
measure in relation to arbitration proceedings, irrespective of
whether their place is in the territory of this State, as it has in
relation to proceedings in courts. The court shall exercise
such power in accordance with its own procedures in
consideration of the specific features of international
arbitration.
Q: When does the arbitral proceeding commence?
A: Unless otherwise agreed by the parties, the arbitral
proceedings in respect of a particular dispute commence on
the date on which a request for that dispute to be referred to
arbitration is received by the respondent.
Language of the proceedings (Article 22)
CONDUCT OF ARBITRAL PROCEEDINGS
Q: What should be the language of the proceedings?
Q: How should the parties be treated during the arbitral
proceedings?
A: The parties shall be treated with equality and each party
shall be given a full opportunity of presenting his case (Art.
18).
Q: What rules will govern the conduct of arbitral
proceedings?
A:
Determination of rules of procedure (Article 19)
1.
2.
Subject to the provisions of this Law, the parties are
free to agree on the procedure to be followed by the
arbitral tribunal in conducting the proceedings.
Failing such agreement, the arbitral tribunal may,
subject to the provisions of this Law, conduct the
arbitration in such manner as it considers
appropriate. The power conferred upon the arbitral
tribunal includes the power to determine the
admissibility, relevance, materiality and weight of
any evidence.
A: The parties are free to agree on the language or languages
to be used in the arbitral proceedings. Failing such
agreement, the arbitral tribunal shall determine the language
or languages to be used in the proceedings. This agreement
or determination, unless otherwise specified therein, shall
apply to any written statement by a party, any hearing and
any award, decision or other communication by the arbitral
tribunal.
NOTE: The arbitral tribunal may order that any documentary
evidence shall be accompanied by a translation into the
language or languages agreed upon by the parties or
determined by the arbitral tribunal.
Statements of claim and defense (Art. 23)
Q: When should the claimant file his statement of claim?
A: Within the period of time agreed by the parties or
determined by the arbitral tribunal, the claimant shall state:
1.
2.
3.
the facts supporting his claim,
the points at issue and
the relief or remedy sought,
Place of arbitration (Article 20)
Q: How about the respondent?
Q: Where is the place of arbitration?
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A: Within the period of time agreed by the parties or
determined by the arbitral tribunal, the respondent shall:
1.
State his defense in respect of these particulars,
unless the parties have otherwise agreed as to the
required elements of such statements.
_____________________________________________
A: Unless otherwise agreed by the parties, if, without
showing sufficient cause:
1.
Q: May the parties submit documents?
2.
A: The parties may submit with their statements all
documents they consider to be relevant or may add a
reference to the documents or other evidence they will
submit.
3.
the claimant fails to communicate his statement of
claim in accordance with article 23(1), the arbitral
tribunal shall terminate the proceedings;
the respondent fails to communicate his statement
of defense in accordance with article 23(1), the
arbitral tribunal shall continue the proceedings
without treating such failure in itself as an admission
of the claimant’s allegations;
any party fails to appear at a hearing or to produce
documentary evidence, the arbitral tribunal may
continue the proceedings and make the award on
the evidence before it.
Q: May the parties amend or supplement his statement of
claim or defense?
A: Unless otherwise agreed by the parties, either party may
amend or supplement his claim or defense during the course
of the arbitral proceedings, unless the arbitral tribunal
considers it inappropriate to allow such amendment having
regard to the delay in making it.
Expert appointed by arbitral tribunal (Article 26)
Q: May experts be appointed by the arbitral tribunal?
A: Unless otherwise agreed by the parties, the arbitral
tribunal:
Hearings and written proceedings (Article 24)
a.
Q: What should be the form of the hearings?
A: Subject to any contrary agreement by the parties, the
arbitral tribunal shall decide whether:
a.
b.
to hold oral hearings for the presentation of
evidence or for oral argument, or
whether the proceedings shall be conducted on the
basis of documents and other materials.
NOTE: However, unless the parties have agreed that no
hearings shall be held, the arbitral tribunal shall hold such
hearings at an appropriate stage of the proceedings, if so
requested by a party.
b.
may appoint one or more experts to report to it on
specific c issues to be determined by the arbitral
tribunal;
may require a party to give the expert any relevant
information or to produce, or to provide access to,
any relevant documents, goods or other property for
his inspection.
NOTE: Unless otherwise agreed by the parties, if a party so
requests or if the arbitral tribunal considers it necessary, the
expert shall, after delivery of his written or oral report,
participate in a hearing where the parties have the
opportunity to put questions to him and to present expert
witnesses in order to testify on the points at issue.
Court assistance in taking evidence (Article 27)
Q: What is the rule on notice?
A: The parties shall be given sufficient advance notice of any
hearing and of any meeting of the arbitral tribunal for the
purposes of inspection of goods, other property or
documents.
All statements, documents or other information supplied to
the arbitral tribunal by one party shall be communicated to
the other party. Also any expert report or evidentiary
document on which the arbitral tribunal may rely in making
its decision shall be communicated to the parties.
Default of a party (Article 25)
The arbitral tribunal or a party with the approval of the
arbitral tribunal may request from a competent court of this
State assistance in taking evidence.
The court may execute the request within its competence
and according to its rules on taking evidence.
CHAPTER VI. MAKING OF AWARD AND
TERMINATION OF PROCEEDINGS
Rules applicable to substance of dispute Article 28)
Q: What are the rules applicable to the substance of the
case?
Q: When may a party be declared in default?
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Kenneth & King Hizon (3A)
A:
(1) The arbitral tribunal shall decide the dispute in
accordance with such rules of law as are chosen by
the parties as applicable to the substance of the
dispute. Any designation of the law or legal system
of a given State shall be construed, unless otherwise
expressed, as directly referring to the substantive
law of that State and not to its conflict of laws rules.
(2) Failing any designation by the parties, the arbitral
tribunal shall apply the law determined by the
conflict of laws rules which it considers applicable.
(3) The arbitral tribunal shall decide ex aequo et bono or
as amiable compositeur only if the parties have
expressly authorized it to do so.
(4) In all cases, the arbitral tribunal shall decide in
accordance with the terms of the contract and shall
take into account the usages of the trade applicable
to the transaction.
_____________________________________________
all members of the arbitral tribunal shall suffice, provided
that the reason for any omitted signature is stated.
Q: Should the reasons for the award be stated?
A: The award shall state the reasons upon which it is based,
unless the parties have agreed that no reasons are to be
given or the award is an award.
Q: What else should be stated in the award?
A: The award shall state its date and the place of arbitration.
The award shall be deemed to have been made at that place.
NOTE: After the award is made, a copy signed by the
arbitrators in accordance with paragraph (1) of this article
shall be delivered to each party.
Termination of the proceedings (Article 32)
Decision-making by panel of arbitrators (Article 29)
Q: When is the arbitral proceedings considered terminated?
Q: How should the panel of arbitrators decide on the case?
A: In arbitral proceedings with more than one arbitrator, any
decision of the arbitral tribunal shall be made, unless
otherwise agreed by the parties, by a majority of all its
members. However, questions of procedure may be decided
by a presiding arbitrator, if so authorized by the parties or all
members of the arbitral tribunal.
A: The arbitral proceedings are terminated by the final award
or by an order of the arbitral tribunal.
Q: When should the arbitral tribunal issue an order for the
termination of the arbitral proceedings?
A: The arbitral tribunal shall issue an order for the
termination of the arbitral proceedings when:
Settlement (Article 30)
Q: In case the parties, during the arbitration proceedings
settle the dispute, what is the effect of such settlement to
the proceedings?
A: If, during arbitral proceedings, the parties settle the
dispute, the arbitral tribunal shall terminate the proceedings
and, if requested by the parties and not objected to by the
arbitral tribunal, record the settlement in the form of an
arbitral award on agreed terms.
Q: When should the arbitral tribunal render an award?
A: An award on agreed terms shall be made in accordance
with the provisions of article 31 and shall state that it is an
award. Such an award has the same status and effect as any
other award on the merits of the case.
(a) the claimant withdraws his claim, unless the
respondent objects thereto and the arbitral tribunal
recognizes a legitimate interest on his part in
obtaining a final settlement of the dispute;
(b) the parties agree on the termination of the
proceedings;
(c) the arbitral tribunal finds that the continuation of
the proceedings has for any other reason become
unnecessary or impossible.
Correction and interpretation of award; additional award
(Article 33)
Q: When may the party request the arbitral tribunal to
correct the award?
A: Within thirty days of receipt of the award, unless another
period of time has been agreed upon by the parties:
Form and contents of award (Article 31)
a.
Q: What should be the form of the award?
A: The award shall be made in writing and shall be signed by
the arbitrator or arbitrators. In arbitral proceedings with
more than one arbitrator, the signatures of the majority of
A party, with notice to the other party, may request
the arbitral tribunal to correct in the award any
errors in computation, any clerical or typographical
errors or any errors of similar nature;
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UNIVERSITY OF SANTO TOMAS
NOTES ON ALTERNATIVE DISPUTE RESOLUTION
Kenneth & King Hizon (3A)
b.
_____________________________________________
If so agreed by the parties, a party, with notice to
the other party, may request the arbitral tribunal to
give an interpretation of a specific point or part of
the award.
If the arbitral tribunal considers the request to be justified, it
shall make the correction or give the interpretation within
thirty days of receipt of the request. The interpretation shall
form part of the award.
Q: Can the arbitration tribunal correct the error on its own
initiative?
A: Yes, the arbitral tribunal may correct any error on its own
initiative within thirty days of the date of the award.
NOTE: Unless otherwise agreed by the parties, a party, with
notice to the other party, may request, within thirty days of
receipt of the award, the arbitral tribunal to make an
additional award as to claims presented in the arbitral
proceedings but omitted from the award. If the arbitral
tribunal considers the request to be justified, it shall make
the additional award within sixty days.
(iv) the composition of the arbitral tribunal or the
arbitral procedure was not in accordance with the
agreement of the parties, unless such agreement
was in conflict with a provision of this Law from
which the parties cannot derogate, or, failing such
agreement, was not in accordance with this Law; or
b.
the court finds that:
(i) the subject-matter of the dispute is not capable of
settlement by arbitration under the law of this State;
or
(ii) the award is in conflict with the public policy of this
State.
NOTE: An application for setting aside may not be made after
three months have elapsed from the date on which the party
making that application had received the award or, if a
request had been made under article 33, from the date on
which that request had been disposed of by the arbitral
tribunal.
Q: Can the court be given the opportunity to resume the
arbitral proceedings?
CHAPTER VII. RECOURSE AGAINST AWARD
Application for setting aside as exclusive recourse against
arbitral award (Article 34)
Q: Under what instance may an arbitral award be set aside?
A: An arbitral award may be set aside by the court specified in
article 6 only if the party making the application furnishes
proof that:
a.
A: The court, when asked to set aside an award, may, where
appropriate and so requested by a party, suspend the setting
aside proceedings for a period of time determined by it in
order to give the arbitral tribunal an opportunity to resume
the arbitral proceedings or to take such other action as in
the arbitral tribunal’s opinion will eliminate the grounds for
setting aside.
CHAPTER VIII. RECOGNITION AND ENFORCEMENT OF
AWARDS
The party making the application furnishes proof that:
Recognition and enforcement (Article 35)
(i) a party to the arbitration agreement referred to in
article 7 was under some incapacity; or the said
agreement is not valid under the law to which the
parties have subjected it or, failing any indication
thereon, under the law of this State; or
(ii) the party making the application was not given
proper notice of the appointment of an arbitrator or
of the arbitral proceedings or was otherwise unable
to present his case; or
(iii) the award deals with a dispute not contemplated by
or not falling within the terms of the submission to
arbitration, or contains decisions on matters beyond
the scope of the submission to arbitration, provided
that, if the decisions on matters submitted to
arbitration can be separated from those not so
submitted, only that part of the award which
contains decisions on matters not submitted to
arbitration may be set aside; or
(1) An arbitral award, irrespective of the country in which it
was made, shall be recognized as binding and, upon
application in writing to the competent court, shall be
enforced subject to the provisions of this article and of
article 36.
(2) The party relying on an award or applying for its
enforcement shall supply the original award or a copy
thereof. If the award is not made in an official language
of this State, the court may request the party to supply a
translation thereof into such language.
Grounds for refusing recognition or enforcement (Article 36)
Q: When can the award be refused?
A: Recognition or enforcement of an arbitral award,
irrespective of the country in which it was made, may be
refused only:
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Kenneth & King Hizon (3A)
a.
at the request of the party against whom it is
invoked, if that party furnishes to the competent
court where recognition or enforcement is sought
proof that:
b.
a party to the arbitration agreement referred to in
article 7 was under some incapacity; or the said
agreement is not valid under the law to which the
parties have subjected it or, failing any indication
thereon, under the law of the country where the
award was made; or
c.
the party against whom the award is invoked was
not given proper notice of the appointment of an
arbitrator or of the arbitral proceedings or was
otherwise unable to present his case; or
d.
the award deals with a dispute not contemplated by
or not falling within the terms of the submission to
arbitration, or it contains decisions on matters
beyond the scope of the submission to arbitration,
provided that, if the decisions on matters submitted
to arbitration can be separated from those not so
submitted, that part of the award which contains
decisions on matters submitted to arbitration may
be recognized and enforced; or
e.
f.
_____________________________________________
Republic Act No. 9285
AN ACT TO INSTITUTIONALIZE THE USE OF AN ALTERNATIVE
DISPUTE RESOLUTION SYSTEM IN THE PHILIPPINES AND TO
ESTABLISH THE OFFICE FOR ALTERNATIVE DISPUTE
RESOLUTION, AND FOR OTHER PURPOSES
"Alternative Dispute Resolution Act of 2004."
CHAPTER 4 - INTERNATIONAL COMMERCIAL ARBITRATION
SEC. 19. Adoption of the Model Law on International
Commercial Arbitration
International commercial arbitration shall be
governed by the Model Law on International Commercial
Arbitration (the "Model Law") adopted by the United Nations
Commission on International Trade Law on June 21, 1985
(United Nations Document A/40/17) and recommended
approved on December 11, 1985, copy of which is hereto
attached as Appendix "A".
SEC. 20. Interpretation of Model Law
Q: How should the Model Law be interpreted?
A: In interpreting the Model Law, regard shall be had to:
a.
b.
c.
the composition of the arbitral tribunal or the
arbitral procedure was not in accordance with the
agreement of the parties or, failing such agreement,
was not in accordance with the law of the country
where the arbitration took place; or
d.
the award has not yet become binding on the parties
or has been set aside or suspended by a court of the
country in which, or under the law of which, that
award was made; or
its international origin and
to the need for uniformity in its interpretation and
resort
may
be
made
to
the travaux
preparatories and
the report of the Secretary General of the United
Nations Commission on International Trade Law
dated March 25, 1985 entitled, "International
Commercial Arbitration: Analytical Commentary on
Draft Trade identified by reference number A/CN.
9/264."
(b) if the court finds that:
SEC. 21. Commercial Arbitration
(i) the subject-matter of the dispute is not capable of
settlement by arbitration under the law of this State;
or
(ii) the recognition or enforcement of the award would
be contrary to the public policy of this State.
Q: When is arbitration considered as commercial?
A: An arbitration is "commercial" if it covers matters arising
from all relationships of a commercial nature, whether
contractual or not.
Q: What are the relationships of a transaction covered?
A:
1.
2.
3.
any trade transaction for the supply or exchange of
goods or services;
distribution agreements; construction of works;
commercial representation or agency;
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UNIVERSITY OF SANTO TOMAS
NOTES ON ALTERNATIVE DISPUTE RESOLUTION
Kenneth & King Hizon (3A)
4.
5.
6.
7.
8.
9.
10.
11.
12.
13.
14.
15.
factoring;
leasing,
consulting;
engineering;
licensing;
investment;
financing;
banking;
insurance;
joint venture and
other forms of industrial or business cooperation;
carriage of goods or passengers by air, sea, rail or
road
_____________________________________________
SEC. 24. Referral to Arbitration
Q: When may the parties invoke the arbitration clause?
A: A court before which an action is brought in a matter
which is the subject matter of an arbitration agreement shall,
a.
b.
if at least one party so requests not later that the
pre-trial conference,
or upon the request of both parties thereafter, refer
the parties to arbitration
Q: What are the instances where the court may refuse the
invocation of the arbitration?
SEC. 22. Legal Representation in International Arbitration
A:
Q: What is the rule regarding the Legal Representation in
International Arbitration? May a foreign lawyer be a
representative?
A: In international arbitration conducted in the Philippines, a
party may be presented by any person of his
choice. Provided, that such representative, unless admitted to
the practice of law in the Philippines, shall not be authorized
to appear as counsel in any Philippine court, or any other
quasi-judicial body whether or not such appearance is in
relation to the arbitration in which he appears.
1.
2.
3.
unless it finds that the arbitration agreement is null
and void,
inoperative or
incapable of being performed.
SEC. 25. Interpretation of the Act
Q: What is the rule in interpretation of this Act in
connection with the policy of the law?
A: In interpreting the Act, the court shall have due regard to
the policy of the law in favor of arbitration.
SEC. 23. Confidential of Arbitration Proceedings
Q: What is the rule in case of multiple parties?
Q: May the arbitration proceedings be published?
A: The arbitration proceedings, including the records,
evidence and the arbitral award, shall be considered
confidential and shall not be published
A: Where action is commenced by or against multiple parties,
one or more of whom are parties who are bound by the
arbitration agreement although the civil action may continue
as to those who are not bound by such arbitration
agreement.
Q: What are the exceptions?
A: Except
SEC. 26. Meaning of "Appointing Authority
1.
2.
with the consent of the parties, or
for the limited purpose of disclosing to the court of
relevant documents in cases where resort to the
court is allowed herein. Provided, however, that the
court in which the action or the appeal is pending
may issue a protective order to prevent or prohibit
disclosure of documents or information containing
secret processes, developments, research and other
information where it is shown that the applicant
shall be materially prejudiced by an authorized
disclosure thereof.
Q: Who is an appointing authority?
A: "Appointing Authority" as used in the Model Law shall
mean the person or institution named in the arbitration
agreement as the appointing authority; or the regular
arbitration arbitration institution under whose rules the
arbitration is agreed to be conducted. Where the parties have
agreed to submit their dispute to institutional arbitration
rules, and unless they have agreed to a different procedure,
they shall be deemed to have agreed to procedure under
such arbitration rules for the selection and appointment of
arbitrators. In ad hoc arbitration, the default appointment of
an arbitrator shall be made by the National President of the
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Kenneth & King Hizon (3A)
_____________________________________________
Integrated Bar of the Philippines (IBP) or his duly authorized
representative.
Q: What is the form of the application for the interim
measure?
SEC. 27. What Functions May be Performed by Appointing
Authority
A: Interim or provisional relief is requested by written
application transmitted by reasonable means to the Court or
arbitral tribunal as the case may be and the party against
whom the relief is sought, describing in appropriate detail the
precise relief, the party against whom the relief is requested,
the grounds for the relief, and evidence supporting the
request.
The functions referred to in Articles 11(3), 11(4), 13(3) and
14(1) of the Model Law shall be performed by the Appointing
Authority, unless the latter shall fail or refuse to act within
thirty (30) days from receipt of the request in which case the
applicant may renew the application with the Court.
Q: How is the interim measure enforced?
SEC. 28. Grant of Interim Measure of Protection
A: Either party may apply with the Court for assistance in
Implementing or enforcing an interim measure ordered by an
arbitral tribunal.
Q: May the court grant interim measures of protection in
favor of one party? From whom shall it be applied?
Q: What if a party does not comply with the order?
A:
A: A party who does not comply with the order shall be liable
for:
a.
b.
It is not incompatible with an arbitration agreement
for a party to request, before constitution of the
tribunal, from a Court an interim measure of
protection and for the Court to grant such measure.
After constitution of the arbitral tribunal and during
arbitral proceedings, a request for an interim
measure of protection or modification thereof, may
be made with the arbitral tribunal or to the extent
that the arbitral tribunal has no power to act or is
unable to act effectively, the request may be made
with the Court.
Q: When is the arbitral tribunal deemed constituted?
A: The arbitral tribunal is deemed constituted when the sole
arbitrator or the third arbitrator who has been nominated, has
accepted the nomination and written communication of said
nomination and acceptance has been received by the party
making request.
Q: What are the purposes of the interim measures?
A: Such relief may be granted:
1.
2.
3.
4.
to prevent irreparable loss or injury:
to provide security for the performance of any
obligation;
to produce or preserve any evidence; or
to compel any other appropriate act or omission.
NOTE: The order granting provisional relief may be
conditioned upon the provision of security or any act or
omission specified in the order.
a.
b.
c.
all damages resulting from noncompliance,
including all expenses, and
reasonable attorney's fees, paid in obtaining the
order's judicial enforcement.
SEC. 29. Further Authority for Arbitrator to Grant Interim
Measure of Protection
NOTE: Unless otherwise agreed by the parties, the arbitral
tribunal may, at the request of a party, order any party to
take such interim measures of protection as the arbitral
tribunal may consider necessary in respect of the subject
matter of the dispute following the rules in Section 28,
paragraph 2. Such interim measures may include but shall not
be limited to preliminary injuction directed against a party,
appointment of receivers or detention, preservation,
inspection of property that is the subject of the dispute in
arbitration. Either party may apply with the Court for
assistance in implementing or enforcing an interim measures
ordered by an arbitral tribunal.
SEC. 30. Place of Arbitration
Q: Where is the place of arbitration?
A:
GR: The parties are free to agree on the place of arbitration.
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NOTES ON ALTERNATIVE DISPUTE RESOLUTION
Kenneth & King Hizon (3A)
_____________________________________________
XPN: Failing such agreement, the place of arbitration shall be
in Metro Manila, unless the arbitral tribunal, having regard to
the circumstances of the case, including the convenience of
the parties shall decide on a different place of arbitration.
NOTE: The arbitral tribunal may, unless otherwise agreed by
the parties, meet at any place it considers appropriate for
consultation among its members, for hearing witnesses,
experts, or the parties, or for inspection of goods, other
property or documents.
SEC. 31. Language of the Arbitration
Q: What is the rule as to the language of the arbitration?
A:
GR: The parties are free to agree on the language or
languages to be used in the arbitral proceedings.
XPN: Failing such agreement, the language to be used shall
be English in international arbitration, and English or Filipino
for domestic arbitration, unless the arbitral tribunal shall
determine a different or another language or languages to be
used in the proceedings. This agreement or determination,
unless otherwise specified therein, shall apply to any written
statement by a party, any hearing and any award, decision or
other communication by the arbitral tribunal.
NOTE: The arbitral tribunal may order that any documentary
evidence shall be accompanied by a translation into the
language or languages agreed upon by the parties or
determined in accordance with paragraph 1 of this section.
REFERENCES




UST Golden Notes 2008
Marx Notes: Alternative Dispute Resolution
UNCTRAL
New York Convention
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