DISPUTE RESOLUTION AND CRISES/INCIDENTS MANAGEMENT
COURSE CODE: C161
PRE-REQUISITE: Juvenile Delinquency and Juvenile Justice System
NO. OF UNITS: 3 units
COURSE DESCRIPTION:
This course deals with the study of the process of dealing and
resolving conflicts/disputes resolution and crises management.
It
includes the art of intervention through mediation and reconciliation of
disagreements between stakeholder’s agencies. Likewise, the course
includes handling of crises that the criminal justice personnel are
commonly encountered. Moreover, the study significantly provides
mechanisms on how to adopt strategies in dealing with potential and
actual crises which are being addressed by concerned agencies and
authorities from law enforcement, corrections and communities.
COURSE OBJECTIVES:
At the end of the course, the students should be able to:
1. Explain the basic concept of Conflict and enumerate and apply the
strategies of Conflict Resolution.
2. Define the concepts of disputes’ resolution
3. Know how to the subject matters of Arbitration law and the procedure on
Arbitration Agreement.
4. Know the process of settling disputes in the barangay level, the steps
on how constitute a Lupon, cases under Katarungay Pambarangay and rules
to be considered in determining the venue in settling disputes.
5. Know functions the basic concept of restorative justice and difference
between retributive and restorative justice.
6. Differentiate crisis from incident management, identify the common
incidents usually encountered by criminal justice personnel and can
describe crisis management unit and their functions.
COURSE OUTLINE:
Chapter 1: General Concepts








1.1: Concept of Conflict;
 What is Conflict?
 What are Conflict Theories?
 What are the Conflict Resolution Strategies?
1.2: Alternative Dispute Resolution (ADR) Act;
1.3: The Office for Alternative Dispute Resolution;
1.4: Mediation;
1.5: International Commercial Arbitration;
1.6: Recognition and Enforcement of Awards;
1.7: Domestic Arbitration;; and
1.8: Arbitration Law (Republic Act No. 876).
Chapter 2: Katarungang Pambarangay Law and Restorative

2.1: Katarungang Pambarangay Law; and
Justice

2.2: Restorative Justice.
Chapter 3: Crises and Incident Management






3.1:
3.2:
3.4:
3.5:
3.6:
3.7:
Basic concept of crises and incident management;
Nature and types of crises;
Distinction of crises and incidents;
The concept and importance of crisis management;
Composition and functions of crisis management; and
Crisis and incidents preventive measures.
OVERVIEW
Under CHED Memorandum Order No. 05 series of 2018, the most recent
curriculum governing BS Criminology Course, the subject Dispute
Resolution and Crisis Management was formally introduced with a course
code of Criminology 6.
This subject entails a very significant contribution in the field
of criminology, law enforcement, public safety, and research. Thus,
students will benefit relevant knowledge on activities involving dispute
resolution and identify conflicting issues thereby treating them from
becoming a worst case which may be occurred in the family, workplace,
community, and society in general. Also, understanding on the different
principles and methodology in conflict resolution, creating strategic
crime prevention and crisis management efforts will be a contributory
factor.
The promotion of peace and ensuring public safety requires a deep
understanding on how to promote conflict resolution at the early stage.
In the event of sudden occurrences brought about by crisis, either
natural or man – made crisis, the importance of internalizing and
applying knowledge on the principles and procedures in Crisis Management
will capacitate the learners from being an instrument of peace and
public safety on the future.
DISPUTE RESOLUTION SYSTEM
PRE-TEST
1. This Act is known as the "Alternative
Dispute Resolution Act of 2004."
a. RA 876
b. RA 11131
c. RA 9285
d. RA 6975
It is an activity which takes place when conscious beings (individuals
or groups) wish to carry out mutually inconsistent acts concerning
their wants, needs or obligations.
a. Frustration
c. Crisis
b. Stress
d. Conflict
3. This Act shall be known as "The Arbitration Law."
a. RA 876
c. RA 9285
b. RA 11131
d. RA 6975
2.
4.
It Mediation 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.
a. Arbitration
c. Conciliation
b. Hearing
d. Mediation
5.
It is 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 this RA 9285, resolve a dispute by
rendering an award.
a. Arbitration
c. Conciliation
b. Mediation
d. Trial
CHAPTER I 1.1:CONFLICT
1.
What is Conflict?
A conflict is an activity which takes place when conscious beings
(individuals or groups) wish to carry out mutually inconsistent acts
concerning their wants, needs or obligations. (Nicholson, M., 1992)
Conflict may
between people which
either be within one
It exists when they
the behavior of the
The word “Conflict”
to come together for
2.
also refer to a natural disagreement or struggle
may be physical, or between conflicting ideas. It can
person, or they can involve several people or groups.
have incompatible goals and one or more believe that
other prevents them from their own goal achievement.
comes from the Latin word “conflingere” which means
a battle.
What are Conflict Theories?
Conflict theory states that tensions and conflicts arise when
resources, status, and power are unevenly distributed between groups in
society and that these conflicts become the engine for social change. In
this context, power can be understood as control of material resources and
accumulated wealth, control of politics and the institutions that make up
society, and one's social status relative to others (determined not just
by class but by race, gender, sexuality, culture, and religion, among
other things). (Crossman, 2019)
Conflict theory originated in the work of Karl Marx, who focused on
the causes and consequences of class conflict between the bourgeoisie
(the owners of the means of production and the capitalists) and the
proletariat (the working class and the poor). Many social theorists have
built on Marx's conflict theory to bolster it, grow it, and refine it over
the years. Many others have drawn on conflict theory to develop other
types of theory within the social sciences, including the following:
1.
2.
3.
4.
5.
6.
Feminist theory;
Critical race theory;
Postmodern theory and postcolonial theory;
Queer theory;
Post-structural theory, and
Theories of globalization and world systems.
So, while initially conflict theory described class conflicts
specifically, it has lent itself over the years to studies of how other
kinds of conflicts, like those premised on race, gender, sexuality,
religion, culture, and nationality, among others, are a part of
contemporary social structures, and how they affect our lives.
3.
What are the Conflict Resolution Strategies?
Kenneth Thomas and Ralph Kilmann (2015) developed five
conflict resolution strategies Thomas – Kilmann Instrument or more
generally known as TKI Conflict Strategies that people use to handle
conflict,
including
avoiding,
defeating,
compromising,
accommodating, and collaborating.
The Thomas-Kilmann Instrument is designed to measure a
person’s behavior in conflict situations. “Conflict situations” are
those in which the concerns of two people appear to be incompatible.
In such conflict situations, an individual’s behavior can be
described along two dimensions: (1) assertiveness, the extent to which
the person attempts to satisfy
his own concerns, and (2)
cooperativeness, the extent to which the person attempts to satisfy the
other person’s concerns.
The following are the five (5) Conflict Resolution Strategies:
a. Conflict Resolution Strategy #1: Avoiding
This is unassertive and uncooperative. The person neither pursues
his own concerns nor those of the other individual. Thus, he does not
deal with the conflict. Avoiding might take the form of diplomatically
sidestepping an issue, postponing an issue until a better time, or
simply withdrawing from a threatening situation.
Avoiding is when people just ignore or withdraw from the
conflict. They choose this method when the discomfort of confrontation
exceeds the potential reward of resolution of the conflict. While this
might seem easy to accommodate for the facilitator, people are not
really contributing anything of value to the conversation and may be
withholding worthwhile ideas. When conflict is avoided, nothing is
resolved.
b. Conflict Resolution Strategy #2: Competing
This is assertive and uncooperative. An individual pursues his own
concerns at the other person’s expense. This is a power-oriented mode in
which you use whatever power seems appropriate to win your own position—
your ability to argue, your rank, or economic sanctions. Competing means
“standing up for your rights,” defending a position which you believe is
correct, or simply trying to win. Competing is used by people who go
into a conflict planning to win. Competing might work in sports or war,
but it’s rarely a good strategy for group problem solving.
c. Conflict Resolution Strategy #3: Accommodating
This is unassertive and cooperative—the complete opposite of
competing. When accommodating, the individual neglects his own concerns
to satisfy the concerns of the other person; there is an element of
self-sacrifice in this mode. Accommodating might take the form of
selfless generosity or charity, obeying another person’s order when you
would prefer not to, or yielding to another’s point of view.
Also, accommodating is a strategy where one party gives in to the
wishes or demands of another. They are being cooperative but not
assertive. This may appear to be a gracious way to give in when one
figures out s/he has been wrong about an argument. It is less helpful
when one party accommodates another merely to preserve harmony or to
avoid disruption. Like avoidance, it can result in unresolved issues.
Too much accommodation can result in groups where the most assertive
parties commandeer the process and take control of most conversations.
d. Conflict Resolution Strategy #4: Collaborating
It is both assertive and cooperative—the complete opposite of
avoiding. Collaborating involves an attempt to work with others to find
some solution that fully satisfies their concerns. It means digging
into an issue to pinpoint the underlying needs and wants of the two
individuals. Collaborating between two persons might take the form of
exploring a disagreement to learn from each other’s insights or trying
to find a creative solution to an interpersonal problem.
A group may learn to allow each participant to contribute with the
possibility of co-creating a shared solution that everyone can support.
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e. Conflict Resolution Strategy #5: Compromising
It is moderate in both assertiveness and cooperativeness. The
objective is to find some expedient, mutually acceptable solution that
partially satisfies both parties. It falls intermediate between
competing and accommodating. Compromising gives up more than competing
but less than accommodating. Likewise, it addresses an issue more
directly than avoiding, but does not explore it in as much depth as
collaborating. In some situations, compromising might mean splitting
the difference between the two positions, exchanging concessions, or
seeking a quick middle- ground solution.
The concept of this is that everyone gives up a little bit of
what they want, and no one gets everything they want. The perception of
the best outcome when working by compromise is that which “splits the
difference.” Compromise is perceived as being fair, even if no one is
particularly happy with the outcome.
CHAPTER I 1.2:
ALTERNATIVE DISPUTE RESOLUTION ACT
What is Republic Act No. 9285?
This is an act known as the “Alternative Dispute Resolution Act of
2004.”
What is the policy
Resolution?
of the State regarding the Alternative Dispute
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. As such, the State
shall provide means for the use of ADR as an efficient tool and an
alternative procedure for the resolution of appropriate cases. Likewise,
the State shall enlist active private sector participation in the
settlement of disputes through ADR.
Does RA 9285 limits the power of the Supreme Court to adopt any ADR System?
No. This Act shall be without prejudice to the adoption by the
Supreme Court of any ADR system, such as mediation, conciliation,
arbitration, or any combination thereof as a means of achieving speedy
and efficient means of resolving cases pending before all courts in the
Philippines which shall be governed by such rules as the Supreme Court
may approve from time to time. (Sec. 2, RA 9285)
What is Alternative Dispute Resolution?
Alternative
procedure used to
adjudication of a
government agency,
Dispute Resolution
resolve a dispute
presiding judge of
as defined under RA
System means any process or
or controversy, other than by
a court or an officer of a
9285, in which a neutral third
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party participates to assist in the resolution of issues, which includes
arbitration, mediation, conciliation, early neutral evaluation, minitrial, or any combination thereof. (Sec. 3, par. a, RA 9285)
What is Arbitration?
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 RA 9285, resolve a dispute by
rendering an award. (Sec. 3, par. d, RA 9285)
Note: Award means any partial or final decision by an arbitrator in
resolving the issue or controversy.
Who is an Arbitrator?
Arbitrator means the person appointed to render an award, alone or
with others, in a dispute that is the subject of an arbitration
agreement. (Sec. 3, par. e, RA 9285)
What is Early Neutral Evaluation?
This means an ADR process wherein parties and their lawyers are
brought together 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.
(Sec. 3, par. n, RA 9285)
What is Mediation?
Mediation 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.
(Sec. 3, par. q, RA 9285)
Who is a Mediator?
Mediator means a person who conducts mediation. (Sec. 3, par. r, RA
9285)
What is Mediation Party?
This means a person who participates in a mediation and whose consent
is necessary to resolve the dispute. (Sec. 3, par. s, RA 9285)
What is Mediation-Arbitration?
"Mediation-Arbitration" or Med-Arb is a step dispute resolution
process involving both mediation and arbitration. (Sec. 3, par. t, RA 9285)
What is Mini-trial?
This 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 (Sec. 3, par. u, RA 9285)
7
How arbitration, mediation and conciliation are different from each other?
Arbitration, mediation and conciliation are the main Alternative
Dispute Resolution Mechanism which is generally adopted by the people to
resolve their disputes in an informal manner. They try to reach a
solution by settlement or negotiation with the assistance of a third
neutral party and have turned out to be an effective alternative to the
litigation process.
Arbitration is a process where the parties submit their case to a
neutral third party who on the basis of discussion determine the dispute
and comes to a solution.
Mediation and conciliation both are an informal process. Whereas,
arbitration is more formal as compared to them. In mediation, the
mediator generally sets out alternatives for the parties to reach out an
agreement. The main advantage of the mediation is that the settlement is
made by the parties themselves rather than a third party. It is not
legally binding on the parties. In addition, the basic motive of
mediation is to provide opportunities to parties to negotiate and come to
a final solution catering the needs of both sides.
Dispute resolution through conciliation involves the assistance of
a neutral third party who plays an advisory role in reaching an
agreement. The process adopted by all the three are different but, the main
purpose is to resolve the dispute in a way where the interest of the
parties is balanced.
What is ADR Provider?
"ADR Provider" means institutions or persons accredited as
mediator, conciliator, arbitrator, neutral evaluator, or any person
exercising similar functions in any Alternative Dispute Resolution
system. This is without prejudice to the rights of the parties to choose
non-accredited individuals to act as mediator, conciliator, arbitrator, or
neutral evaluator of their dispute. (Sec. 3, par. b, RA 9285)
What is the liability of ADR providers/Practitioners?
The ADR provides /practitioners shall have the same civil liability
for acts done in the performance of their official duties as that of
public officers as provided in Section 38 (1), Chapter 9, Book 1 of the
Administrative Code of 1987, upon a clear showing of bad faith, malice or
gross negligence. (Article 1.5, IRR, RA 9285)
What are the cases wherein Republic Act No. 9285 does not apply?
The provisions of RA 92856 shall not apply to resolution or
settlement of the following:
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;
8
f)
g)
h)
i)
Future legitime;
Criminal liability;
Those which by law cannot be compromised; and
Those disputes referred to court-annexed mediation. (Article 1.3, IRR,
RA 9285)
CHAPTER 1.3: THE
OFFICE FOR THE
ALTERNATIVE DISPUTE
RESOLUTION
The Office for Alternative Dispute Resolution
The Office for Alternative Dispute Resolution (OADR) is as an
agency attached to the Department of Justice. It shall have a Secretariat
and shall be headed by an Executive Director, who shall be appointed by
the President of the Philippines, taking into consideration the
recommendation of the Secretary of Justice. (Article 2.1., IRR, RA 9285)
POWERS OF THE OFFICE FOR ALTERNATIVE DISPUTE RESOLUTION:
The OADR shall have the following powers:
a. To act as appointing authority of mediators and arbitrators when the
parties agree in writing that it shall be empowered to do so;
b. To conduct seminars, symposia, conferences and other public fora and
publish proceedings of said activities and relevant materials/information
that would promote, develop and expand the use of ADR;
c. To establish an ADR library or resource center where ADR laws, rules and
regulation, jurisprudence, books, articles and other information about
ADR in the Philippines and elsewhere may be stored and accessed;
d. To establish training programs for ADR providers/practitioners, both in
the public and private sectors; and to undertake periodic and continuing
training programs for arbitration and mediation and charge fees on
participants. It may do so in conjunction with or in cooperation with the
IBP, private ADR organizations, and local and foreign government offices
and agencies and international organizations;
e. To certify those who have successfully completed the regular professional
training programs provided by the OADR;
f. To charge for services rendered such as, among others, for training and
certifications of ADR providers;
g. To accept donations, grants and other assistance from local and foreign
sources; and
h. To exercise such other powers as may be necessary and proper to carry into
effect the provisions of the ADR Act. (Art. 2.2., IRR, RA 9285)
FUNCTIONS OF THE OADR:
The OADR shall have the following functions:
a. To promote, develop and expand the use of ADR in the private and public
sectors through information, education and communication;
b. To monitor, study and evaluate the use of ADR by the private and public
9
sectors for purposes of, among others, policy formulation;
c. To recommend to Congress needful statutory changes to develop,
strengthen and improve ADR practices in accordance with international
professional standards;
d. To make studies on and provide linkages for the development,
implementation, monitoring and evaluation of government and private
ADR programs and secure information about their respective
administrative rules/procedures, problems encountered and how they
were resolved;
e. To
compile
and
publish
a
list
or
roster
of
ADR
providers/practitioners, who have undergone training by the OADR, or
by such training providers/institutions recognized or certified by the
OADR as performing functions in any ADR system. The list or roster
shall include the addresses, contact numbers, e-mail addresses, ADR
service/s rendered (e.g. arbitration, mediation) and experience in ADR
of the ADR providers/practitioners;
f. To compile a list or roster of foreign or international ADR
providers/practitioners. The list or roster shall include the
addresses, contact numbers, e-mail addresses, ADR service/s rendered
(e.g. arbitration, mediation) and experience in ADR of the ADR
providers/practitioners; and
i. To perform such other functions as may be assigned to it. (Art. 2.3., IRR,
RA 9285)
STATE DIVISION OF THE OADR:
The OADR shall have the following staff and service divisions, among
others:
Secretariat – shall provide necessary support and discharge
such other functions and duties as may be directed by the Executive
Director.
b.
Public information and Promotion Division – shall be charged
with the dissemination of information, the promotion of the importance
and public acceptance of mediation, conciliation, arbitration or any
combination thereof and other ADR forms as a means of achieving speedy
and efficient means of resolving all disputes and to help in the
promotion, development and expansion of the use of ADR.
c.
Training Division – shall be charged with the formulation of
effective standards for the training of ADR practitioners; conduct of
training in accordance with such standards; issuance of certifications
of training to ADR practitioners and ADR service providers who have
undergone the professional training provided by the OADR; and the
coordination of the development, implementation, monitoring and
evaluation of government and private sector ADR programs.
d.
Records and Library Division – shall be charged with the
establishment and maintenance of a central repository of ADR laws,
rules and regulations, jurisprudence, books, articles, and other
information about ADR in the Philippines and elsewhere. (Art. 2.4.,
IRR, RA 9285)
a.
THE ADVISORY COUNCIL AND ITS COMPOSITION:
There is also created an Advisory
representative from each of the following:
a.
Council
composed
Mediation profession;
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of
a
b.
c.
d.
e.
Arbitration profession;
ADR organizations;
IBP; and
Academe.
The members of the Council, who shall be appointed by the Secretary
of Justice upon the recommendation of the OADR Executive Director, shall
choose a Chairman from among themselves. (Art. 2.5., IRR, RA 9285)
What is the role of the Advisory Council?
The Advisory Council shall advise the Executive Director on policy,
operational and other relevant matters. The Council shall meet regularly,
at least once every two (2) months, or upon call by the Executive
Director. (Art. 2.6., IRR, RA 9285)
CHAPTER 1.4:
MEDIATION
TERMS APPLICABLE IN MEDIATION:
1. Ad
hoc Mediation means any mediation other than institutional or
court-annexed. Not under the rules of mediation process
2. Institutional Mediation means any mediation process conducted
under the rules of a mediation institution.
3. Court-Annexed Mediation means mediation process conducted under
the auspices of the court and in accordance with Supreme Court
approved guidelines, after such court has acquired jurisdiction of
the dispute.
4. Court-Referred Mediation means mediation ordered by a court to
be conducted in accordance with the agreement of the parties when
an action is prematurely commenced in violation of such agreement.
5. Certified Mediator means a mediator certified by the Office for
ADR as having successfully completed its regular professional
training program.
6. Mediation means a voluntary process in which a mediator, selected
by the disputing party voluntary agreement regarding a dispute.
7. Mediation Party means a person who participates in a mediation and
whose consent is necessary to resolve the dispute.
8. Mediator means a person who conducts mediation.
9. Non-Party Participant means a person, other than a party or
mediator, who participates in a mediation proceeding as a witness,
resource person or expert. (Rule 2, par. B, IRR, RA 9285)
10.
SCOPE OF APPLICATION:
These Rules apply to voluntary mediation, whether ad hoc or
institutional, other than court-annexed mediation and only in default of an
agreement of the parties on the applicable rules.
These Rules shall also apply to all cases pending before an
administrative or quasi-judicial agency that are subsequently agreed upon
by the parties to be referred to mediation. (Article 3.1., IRR, RA 9285)
STATE POLICY ON MEDIATION:
In
applying
and
construing
the
provisions
of
these
Rules,
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consideration must be given to the need to promote candor of parties and
mediators through confidentiality of the mediation process, the policy of
fostering prompt, economical and amicable resolution of disputes in
accordance with principles of integrity of determination by the parties
and the policy that the decision-making authority in the mediation
process rests with the parties.
A party may petition a court before which an action is prematurely
brought in a matter which is the subject of a mediation agreement, if at
least one party so requests, not later than the pre-trial conference or
upon the request of both parties thereafter, to refer the parties to
mediation in accordance with the agreement of the parties. (Article 3.2.,
IRR, RA 9285)
SELECTION OF A MEDIATOR

Do parties have the right to select a Mediator?
Yes. The parties have the freedom to select a mediator. The parties
may request the Office for Alternative Dispute Resolution (OADR) to
provide them list or roster or the resumes of its certified mediators.
The OADR may be requested to inform the mediator of his/her selection.
(Article 3.3., IRR, RA 9285)

Is it required that a Mediator has special qualifications by background
or profession?
As a Rule, ADR act 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. (Sec. 13, RA 9285)

May a party waive his right to participate in Mediation?
Yes, except as otherwise provided in RA 9285, a party may designate
a lawyer or any other person to provide assistance in the mediation. A
lawyer of this right shall be made in writing by the party waiving it. A
waiver of participation or legal representation may be rescinded any
time. (Sec. 14, RA 9285)
Note: Rescind means to revoke or cancel.

When a Mediator be replaced?
If the mediator selected is unable to act as such for any reason,
the parties may, upon being informed of such fact, select another mediator.
(Article 3.4., IRR, RA 9285)

What are the grounds wherein a Mediator may refuse or withdraw such?
A mediator may refuse from acting as such, withdraw or may be
compelled to withdraw from mediator proceedings under the following
circumstances:
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a. If any of the parties so requests the mediator to withdraw;
b. The mediator does not have the qualifications, training and
experience to enable him/her to meet the reasonable expectations of the
parties;
c. Where the mediator's impartially is in question;
d. If continuation of the process would violate any ethical standards;
e. If the safety of any of the parties would be jeopardized;
f. If the mediator is unable to provide effective services;
g. In case of conflict of interest; and
h. In any of the following instances, if the mediator is satisfied
that:
1. One or more of the parties is/are not acting in good faith;
2. The parties' agreement would be illegal or involve the
commission of a crime;
3. Continuing the dispute resolution would give rise to an
appearance of impropriety;
4. Continuing with the process would cause significant harm
to a non-participating person or to the public; or
5. Continuing discussion would not be in the best interest
of the parties, their minor children or the dispute
resolution process. (Article 3.5., IRR, RA 9285)
ETHICAL CONDUCT OF A MEDIATOR
Explain the following terms as Ethical Conduct of a Mediator:
1. Competence
It is not required that a mediator shall have special qualifications
by background or profession unless the special qualifications of a mediator
shall:
a. maintain the continually upgrade his/her professional competence in
mediation skills;
b. ensure that his/her qualifications, training and experience are known
to and accepted by the parties; and
c. serve only when his/her qualifications, training and experience enable
him/her to meet the reasonable expectations of the parties and shall
not hold himself/herself out or give the impression that he/she does not
have.
Upon the request of a mediation party, an individual who is
requested to serve as mediator shall disclose his/her qualifications to
mediate a dispute. (Article 3.5., IRR, RA 9285)
2. Impartially
A mediator shall maintain impartiality.
Before accepting a mediation, an individual who is requested to serve
as a mediator shall:

make an inquiry that is reasonable under the circumstances to
determine whether there are 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 of
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foreseeable participant in the mediation; and

disclose to the mediation parties any such fact known or learned as
soon as practical before accepting a mediation.
If a mediator learns any fact described in paragraph (a) of
this Article after accepting a mediation, the mediator shall disclose it
as soon as practicable to the mediation parties. (Article 3.7., IRR, RA
9285)
3. Confidentiality
A mediator shall keep in utmost confidence all
information obtained in the course of the mediation process.
confidential
A mediator shall discuss issues of confidentiality and the extent
of confidentiality provided in any private sessions or caucuses that the
mediator holds with a party. (Article 3.8., IRR, RA 9285)
4. Consent and Self-Determination
A mediator shall make reasonable efforts to ensure that each
party understands the nature and character of the mediation proceeding
including private caucuses, the issues, the available options, the
alternatives to non-settlement, and that each party is free and able to
make whatever choices he/she desires regarding participation in mediation
generally and regarding specific settlement options.
If a mediator believes that a party, who is not represented
by counsel, is unable to understand, or fully participate, the mediation
proceedings for any reason, a mediator may either:
 limit the scope of the mediation proceedings in a manner consistent
with the party's ability to participate,
 and/or recommend that the party obtain appropriate assistance in order
to continue with the process; or
 terminate the mediation proceedings.
A mediator shall recognize and put in mind that the primary
responsibility of resolving a dispute and the shaping of a voluntary and
uncoerced settlement rests with the parties. (Article 3.9., IRR, RA 9285)
5. Separation of Mediation from Counseling and Legal Advice
a. Except in evaluative mediation or when the parties so request, a
mediator shall:
 refrain from giving legal or technical advice
and otherwise engaging in counseling or
advocacy; and
 abstain
from expressing his/her personal
opinion on the rights and duties of the
parties and the merits of any proposal made.
b. Where appropriate and where either or both parties are not
represented by counsel, a mediator shall;
 recommend
that the parties seek outside
professional advice to help them make informed
decision and to understand the implication of
any proposal; and
 suggest that the parties seek independent legal
and/or technical advice before a settlement
14
agreement is signed.
c. without the consent of al parties, and for a reasonable time
under the particular circumstance, a mediator who also
practices another profession shall not establish a
professional relationship in that other profession with one of
the parties, or any PERSON OR ENTITY, IN A SUBSTANTIALLY AND
FACTUALLY related matter. (Article 3.10., IRR, RA 9285)
6. Charging of Fees.
With respect to charging of fees:
a. A mediator shall fully disclose and explain to the parties the
basis of cost, fees and charges.
b. The mediator who withdraws from the mediation shall return to
the parties any unearned fee and unused deposit.
c. A mediator shall not enter into a fee agreement, which is
contingent upon the results of the mediation or the amount of
the settlement. (Article 3.11., IRR, RA 9285)
PROMOTION OF RESPECT AND CONTROL OF ABUSE OF PROCESS
The mediator shall encourage mutual respect between the parties,
and shall take reasonable steps, subject to the principle of selfdetermination, to limit abuses of the mediation process. (Article 3.12.,
IRR, RA 9285)
1. Solicitation or Acceptance of any Gift.
No mediator or any member of a mediator’s immediate family or
his/her agent shall request, solicit, receive or accept any gift or any
type of compensation other than the agreed fee and expenses in connection
with any matter coming before the mediator. (Article 3.13., IRR, RA 9285)
ROLE OF PARTIES AND THEIR COUNSELS IN MEDIATION
May a party designate a lawyer to assist him in Mediation?
Yes, except as otherwise provided by the ADR Act or by there Rules,
a party may designate a lawyer or any other person to provide assistance
in the mediation. A waiver of this right shall be made in writing by the
party waiving it. A waiver of participation or legal representation may
be rescinded at any time. (Article 3.14., IRR, RA 9285)
Roles of a Counsel in Mediation proceedings
a.
The lawyer shall view his/her role in the mediation as a
collaborator with the other lawyer in working together toward the
common goal of helping their clients resolve their differences to
their mutual advantage.
b.
The lawyer shall encourage and assist his/her client to
actively participate in positive discussions and cooperate in crafting
an agreement to resolve their dispute.
c.
The lawyer must assist his/her client to comprehend and
appreciate the mediation process and its benefits, as well as the
client’s greater personal responsibility for the success of mediation
15
in resolving the dispute.
d.
In preparing for participation in mediation, the lawyer shall
confer and discuss with his/her client the following:
 The
mediation process as essentially a
negotiation between the parties assisted by
their respective lawyers, and facilitated by a
mediator, stressing it its difference from
litigation, its advantages and benefits, the
clients heightened role in mediation and
responsibility for its success and explaining
the role of the lawyer in mediation
proceedings,
 The substance of the upcoming mediation such as;
o The substantive issues involved in the dispute and
their prioritization in terms of importance to
his/her client’s real interests and needs.
o
The study of other party’s position in relation to
the issues with a view to understanding the
underlying interests, fears, concerns and needs;
o
The information or facts to be gathered or sought
from the other side or to be exchanged that are
necessary for informed decision-making;
o The possible options for settlement but stressing
the
need
to
be
open-minded
about
other
possibilities; and
o The best, worst and most likely alternative to a
non-negotiated settlement. (Article 3.15., IRR, RA
9285)
OTHER MATTERS THAT THE COUNCIL MUST DO DURING MEDIATION:
a. shall give support to the mediator so that his/her client will fully
understand the rules and processes of mediation;
b. shall impress upon his/her client the importance of speaking for
himself/herself and taking responsibility for making decisions during
the negotiations within the mediation process.;
c. may ask for a recess in order to give advice or suggestions to his/her
client in private, if he/she perceives that his/her client is unable
to bargain effectively; and
d. shall assist his/her client and the mediator put in writing the terms
of the settlement agreement that the parties have entered into. That
lawyers shall see to it that the terms of the settlement agreement are
not contrary to law, morals, good customs, public order or public
policy. (Article 3.16., IRR, RA 9285)
CONDUCT OF MEDIATION
ARTICLES TO BE CONSIDERED IN THE CONDUCT OF MEDIATION:
The articles to be considered in the conduct of Mediation are the
following:
a. The mediator shall not make untruthful or exaggerated claims about
the dispute resolution process, its costs and benefits, its outcome or
the mediator’s qualifications and abilities during the entire mediation
process.
b. The mediator shall held the parties reach a satisfactory resolution
to their dispute but has no authority to impose a settlement on the
16
parties.
c. The parties shall personally appear for mediation and may be
assisted by a lawyer. A party maybe represented by an agent who must
have full authority to negotiate and settle the dispute.
d. The mediation process shall, in general, consists of the following
stages:
 opening statement of the mediator
 individual narration by the parties;
 exchange by the parties;
 summary of issues;
 generation and evaluation of options; and
 Closure
e. The mediation proceeding shall be held in private. Person, other
than the parties, their representatives and mediator, may attend only
with the consent of all the parties,
f. The mediation shall be closed:
 by the execution of a settlement agreement by the
parties;
 by the withdrawal of any party from mediation; and
 by the written declaration of the mediator that any
further effort at mediation would not be helpful.
(Article 3.17., IRR, RA 9285)
Where is the place of Mediation?
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. (Article 3.18., IRR, RA 9285)
EFFECT OF AGREEMENT TO SUBMIT A DISPUTE TO MEDIATION UNDER INSTITUTIONAL
RULES
What does an agreement to submit a dispute to mediator by an institution
include?
An agreement to submit a dispute to mediation by an institution
shall include an agreement to be bound by the internal mediation and
administrative policies of such institution. Further, an agreement to
submit a dispute to mediation under institutional mediation rules shall
be deemed to include an agreement to have such rules govern the mediation
of the dispute and for the mediator, the parties, their respective
counsels and non- party participants to abide by such rules. (Article
3.19., IRR, RA 9285)
ENFORCEMENT OF MEDIATED SETTLEMENT AGREEMENT
What are the operative principles to guide Mediation?
The mediation shall be guided by the following operative principles:
a. A settlement agreement following successful mediation shall be
prepared by the parties with the assistance of their respective
counsels. If any, and by the mediator. The parties and their
respective counsels shall endeavor to make the terms and condition of
the settlement agreement complete and to make adequate provision for
the contingency of breach to avoid conflicting interpretations of the
agreement.
17
b. 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.
c. If the parties agree, the settlement agreement may be jointly
deposited by the parties or deposited by one party with prior notice
to the other party/ties with the Clerk of Court of the Regional Trial
Court (a) where the principal place of business in the Philippines of
any of the parties is located; (b) if any of the parties is an
individual, where any of those individuals resides; or (c) in the
National Capital Judicial Region. 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 the Special ADR Rules.
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 know as "The
Arbitration Law", notwithstanding the provisions of Executive Order
No. 1008, s. 1985, other wise known as the "Construction Industry
Arbitration Law" for mediated disputes outside the Construction
Industry Arbitration Commission. (Article 3.20., IRR, RA 9285)
CONFIDENTIALITY OF INFORMATION
What are the principles and guidelines on the information obtained through
Mediation?
Information obtained through mediation proceedings shall be subject
to the following principles and guidelines:
a. Information obtained through mediation shall be privileged and confidential.
b. A party, mediator, or non-party participant may refuse to disclose and may
prevent any other person from disclosing a confidential information.
c. Confidential information shall not be subject to discovery and shall be
inadmissible in 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.
d. In such an adversarial proceeding, the following persons involved or
previously involved in a mediation may not be compelled to disclosed
confidential information obtained during the mediation:
 the parties to the dispute;
 the mediator or mediators;

the counsel for the parties;
 the non-party participants
 any person hired or engaged in connection with the
mediation as secretary, stenographer, clerk or assistant;
and
 any other person who obtains or possesses confidential
information by reason of his/her profession.
e. The protections of the ADR Act shall continue to apply even if a mediator is
found to have failed to act impartially.
f. A mediator may not be called to testify to provide confidential information
gathered in mediation. A mediator who is wrongfully subpoenaed shall be
reimbursed the full cost of his/her attorney’s fees and related expenses.
(Article 3.21., IRR, RA 9285)
May the privilege of confidentiality of information be waived?
18
Yes, under the following circumstances,
confidentiality of information is deemed waived:
a
privilege
of
a. 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.
b. With the consent of the mediation parties, a privilege arising from the
confidentiality of information may likewise be waived by a non-party
participant if the information is provided by such non-party participant.
c. A person who discloses confidential information shall be precluded from
asserting the privilege under Article 3.21 (Confidentiality of Information)
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 damage as a result of the disclosure of the confidential
information, he/she shall be entitled to damages in a judicial proceeding
against the person who made the disclosure.
d. A person who discloses or makes a representation about a mediation is
precluded from asserting the privilege mentioned in Article 3.21 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 or disclosure. (Article 3.22., IRR, RA 9285)
What are the exceptions to the privilege of confidentiality of information?
There is no privilege against disclosure under Article 3.21 in the
following instances:
 in an agreement evidenced by a record authenticated by all
parties to the agreement;
 available to the public or 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;
 intentionally 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; but this exception does not apply where
a child protection matter is referred to mediation by a
court or where a public agency participates in the child
protection mediation;
 sought or offered to prove or disapprove a claim or
complaint of professional misconduct or malpractice filed
against a party, non-party participant, or representative
of a party based on conduct occurring during a mediation.
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 confidentially, and
the mediation communication is sought or offered in:
 a court proceeding involving a crime or felony; or
 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.
A mediator may not be compelled to provide evidence of a mediation
communication or testify in such proceeding.
19
If a mediation communication is not privileged under an exception
in sub-section (a) or (b) hereof, only the portion of the communication
necessary for the application of the exception for non-disclosure may be
admitted. The admission of a particular evidence for the limited purpose of
an exception does not render that evidence, or any other mediation
communication, admissible for any other purpose. (Article 3.23., IRR, RA
9285)
May a Mediator be allowed to make a report to communicate matters regarding
Mediation?
As a Rule, NO. A mediator may not make a report, assessment,
evaluation, recommendation, finding or other communication regarding
amediation to a court or agency or other authority that may make a ruling on
a dispute that is the subject of a mediation, except:
j. to state that the mediation occurred or has terminated, or where a
settlement was reached; or
k. as permitted to be disclosed under Article 3.23 (Exception to the Privilege
of Confidentiality of Information).
The parties may, by an agreement in writing, stipulate that
the settlement agreement shall be sealed and not disclosed to any
third party including the court. Such stipulation, however, shall
not apply to a proceeding to enforce or set aside the settlement
agreement. (Article 3.24., IRR, RA 9285)
FEES AND COST OF MEDIATION
5.
In Ad Hoc Mediation, what are the rules on Fees and Cost?
In ad hoc mediation, the parties are free to make their own
arrangement as to mediation cost and fees. In default thereof, the
schedule of cost and fees to be approved by the OADR shall be followed.
(Article 3.25., IRR, RA 9285)
6.
In Institutional Mediation, what does mediation cost include?
In institutional mediation, mediation cost shall include the
administrative charges of the mediation institution under which the parties
have agreed to be bound, mediator’s fees and associated expenses, if any.
In default of agreement of the parties as to the amount and manner of
payment of mediation’s cost and fees, the same shall be determined in
accordance with the applicable internal rules of the mediation service
providers under whose rules the mediation is conducted. (Article 3.26.,
IRR, RA 9285)
7.
What are the factors in determining mediation fee?
A mediation service provider may determine such mediation fee as is
reasonable taking into consideration the following factors, among
others:
a. the complexity of the case;
b. the number of hours spent in mediation; and
c. the training, experience and stature of mediators. (Article 3.26., IRR, RA
9285)
20
CHAPTER 1.5
International Commercial Arbitration
Terms Applicable:
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 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 the 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 Integrated Bar of the
Philippines (IBP) or his /her duly authorized representative.
Arbitral Tribunal (under the Model Law) means a sole arbitrator or a panel
of arbitrators.
Arbitration means any arbitration whether or not administered by a permanent
arbitration institution.
Commercial Arbitration means an arbitration that covers matters arising from
21
all relationships of a commercial nature, whether contractual or not.
Relationships of a commercial nature include, but are not limited to, the
following commercial 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.
Convention Award means a foreign arbitral award in a Convention State.
Convention State means a state that is a member of the New York Convention.
Court (under the Model Law) means a body or organ of the judicial system of
the Philippines (i.e., the Regional Trial Court, Court of Appeals and
Supreme Court).
International Arbitration means an arbitration where:
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
b. one of the following places is situated outside the Philippines in which
the parties have their places of business:
c. the place of arbitration if determined in, or pursuant to , the
arbitration agreement;
d. any place where a substantial part of the obligations of the commercial
relationship is to be performed or the place with the subject matter of
the dispute is most closely connected; or
e. the parties have expressly agreed that the subject matter of the
arbitration agreement relates to more than one country.
For this purpose:
 If a party has more than one place of business, the place of business is
that which has the closest relationship to the arbitration agreement;
 If a party does not have a place of business, reference is to be made to
his/her habitual residence.
New York Convention means the United Nations Convention of the Recognition
and Enforcement of Foreign Arbitral Awards approved in 1958 and ratified by
the Philippine Senate under Senate Resolution No.71.
Non-Convention Award means a foreign arbitral ward made in a state, which is
not a Convention State.
Non-Convention State means a state that is not a member of the New York
Convention. (Rule 2, par. C, IRR, RA 9285)
Scope of application of Chapter 4 of the IRR of RA 9285 on International
Commercial Arbitration
It applies to international commercial arbitration, subject to
any agreement in force between the Philippines and other state or states.
It applies only if the place or seat of arbitration is the
Philippines and in default of any agreement of the parties on the applicable
rules.
It shall not affect any other law of the Philippines by virtue
of which certain disputes may not be submitted to arbitration or may be
submitted to arbitration only according to provisions other than those of
the ADR Act. (Article 4.1., IRR, RA 9285)
Cite the Rules on International Commercial Arbitration.
The following are the rules of interpretation in international commercial
arbitration:
22
International commercial arbitration shall be governed by the
Model Law on International Commercial Arbitration.
In interpreting this Chapter, regard shall be had to the
international origin of the Model Law and to the need for uniformity in its
interpretation. Resort may be made to the travaux preparatoires and the
Report of the Secretary-General of the United Nations Commission on
International Trade Law dated March 1985 entitled, "International Commercial
Arbitration: Analytical Commentary on Draft Text identified by reference
number A/CN. 9/264".
Moreover, in interpreting the IRR, the court shall have due
regard to the policy of the law in favor of arbitration and the policy of
the Philippines to actively promote party autonomy in the resolution of
disputes or the freedom of the parties to make their own arrangement to
resolve their dispute.
Where a provision of the IRR, except the Rules applicable to
the substance of the dispute, leaves the parties free to determine a certain
issue, such freedom includes the right of the parties to authorize a third
party, including an institution, to make that determination.
Where a provisions of the IRR refers to the fact that the
parties have agreed or that they may agree or in any other way refers to an
agreement of the parties, such agreement includes any arbitration rules
referred to in that agreement.
Where a provision of this Chapter, other than in paragraph (a) of Article
4.25 (Default of a Party) and paragraphs (b) (i) of Article 4.32
(Termination of Proceedings), refers to a claim, it also applies to a
counter-claim, and where it refers to a defense, it also applies to a
defense to such counter-claim. (Article 4.2., IRR, RA 9285)
When is a written communication deemed received?
Unless otherwise agreed by the parties:
 any written communication is deemed to have been received if it is
delivered to the addressee personally or at his/her place of business,
habitual residence or mailing address;
 if none of these can be found after making a reasonable inquiry, a
written communication is deemed to have been received if it is sent to
the addressee’s last known place of business, habitual residence or
mailing address by registered letter or any other means which provides a
record of the attempt to deliver it;
 the communication is deemed to have been received on the day it is so
delivered.
The provisions of this Article do not apply to communications
in court proceedings, which shall be governed by the Rules of Court.
(Article 4.3., IRR, RA 9285)
May the right to object be waived?
Yes. The right to object may be waived. Any party who knows
that any provision of this Chapter from which the parties may derogate or
any requirement under the arbitration agreement has not been complied with
and yet proceeds with the arbitration without stating the objections for
such non-compliance without undue delay or if a time limit is provided
therefor, within such period of time, shall be deemed to have waived the
right to object. (Article 4.4., IRR, RA 9285)
What is the extent of Court intervention?
In matters governed by this Chapter, no court shall intervene
except where so provided in the ADR Act. Resort to Philippine courts for
23
matters within the scope of the ADR Act shall be governed by the Special ADR
Rules. (Article 4.5., IRR, RA 9285)
What other functions must be performed by the appointing authority?
The functions referred to in paragraphs (c) and (d) of Article
4.11 (Appointment of Arbitrators) and paragraph (c) of Article 4.13
(Challenge Procedure) and paragraph (a) of Article 4.14 (Failure or
Impossibility to Act) shall be performed by the appointing authority as
defined in Article 1.6 C1, 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. The appointment of an
arbitrator is not subject to appeal or motion for reconsideration.
The functions referred to in paragraph (c) of Article 4.16 (c)
(Competence of Arbitral Tribunal to Rule on its Jurisdiction), second
paragraph of Article 4.34 (Application for Setting Aside an Exclusive
Recourse Against Arbitral Award), Article 4.35 (Recognition and
Enforcement), Article 4.38 (Venue and Jurisdiction), shall be performed by
the appropriate Regional Trial Court.
A Court may not refuse to grant, implement or enforce a
petition for an interim measure, including those provided for in Article 4.9
(Arbitration Agreement and Interim Measures by Court), Article 4. 11
(Appointment of Arbitrators), Article 4.13 (Challenge Procedure), Article
4,27 (Court Assistance in Taking Evidence), on the sole ground that the
Petition is merely an ancillary relief and the principal action is pending
with the arbitral tribunal. (Article 4.6., IRR, RA 9285)
ARBITRATION AGREEMENT
Form of an Arbitration Agreement
The Arbitration agreement, as defined in Articles 1.6 A4,
shall be in writing. An agreement is in writing if it is contained in a
document signed by the parties or in an exchange of letters, telex,
telegrams or other means of telecommunication which provide a record of the
agreement, or in an exchange of statements of claim and defense in which the
existence of an agreement, or in an exchange of statements of claim and
defense in which the existence of an agreement is alleged by one party and
not denied by another. The reference in a contract to a document containing
an arbitration clause constitutes an arbitration agreement provided that the
contracts is writing and the reference is such as to make that clause part
of the contract. (Article 4.7., IRR, RA 9285)
What are the rules when a substantive claim is before a court?
The following are the rules when a substantive claim is before
the court:
A court before which an action is brought in a matter which is
the subject of an arbitration agreement shall, if at least one party so
requests of both parties thereafter, refer the parties to arbitration unless
it finds that the arbitration agreement is null and void, inoperative or
incapable of being performed.


Where an action referred to in the previous paragraph 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.
Where the action is commenced by or against multiple parties, one or
more of whom are parties to an arbitration agreement, the court shall
refer to arbitration those parties who are bound by the arbitration
agreement although the civil action may continue as to those who are not
24
bound by such arbitration agreement. (Article 4.8., IRR, RA 9285)
May a party request for an interim measure of protection before or during
the arbitral proceedings?
Yes. It is not incompatible with an arbitration agreement for
a party to request from a court, before the constitution of the arbitral
tribunal or during arbitral proceedings, an interim measure of protection
and for a court to grant such measure.
To the extent that the arbitral tribunal has no power to act
or is unable to act effectively, a request for interim measure of
protection, or modification thereof as provided for, and in the manner
indicated in Article 4.17 (Power of Tribunal to Order Interim Measures ),
may be made with the court.
The rules of interim or provisional relief provided for in
paragraph ( c ) of Article 4.17 of these Rules shall be observed.
A party may bring a petition under this Article before the court in
accordance with the Rules of Court or the Special ADR Rules. (Article 4.9.,
IRR, RA 9285)
COMPOSITION OF ARBITRAL TRIBUNAL
How many Arbitrators may the parties agree upon?
The parties are free to determine the number of arbitrators
Failing such determination, the number of arbitrators shall be three (3).
(Article 4.10., IRR, RA 9285)
Appointment of Arbitrators
The appointment of arbitrators is governed by the following procedures:
a. No person shall be produced by reason of his/her nationality from acting
as an arbitrator, unless otherwise agreed by the parties.
b. The parties are free to agree on a procedure of appointing the
arbitrator or arbitrators, subject to provisions of paragraphs (d) and
(e) of this Article.
Failing such agreement:in an arbitration with three (3 ) arbitrators, each
party shall appoint one arbitrator, and the two (2) arbitrators thus
appointed shall appoint the third arbitrator; if any party fails to appoint
the arbitrator within thirty (30) days of receipt of a request to do so from
the other party, or if the two (2) arbitrators fail to agree on the third
arbitrator within thirty days (30) days of their appointment shall be made,
upon request of a party, by the appointing authority; in an arbitration with
a sole arbitrator, if the parties are unable to agree on the arbitrator,
he/she shall be appointed, upon request of a party, by the appointing
authority.
Where, under an appointment procedure agreed upon the
parties,a party fails to act as required under such procedure, or the
parties, or two arbitrators, are unable to reach an agreement expected of
them under such procedure, or a third party, including an institution, fails
to perform any function entrusted to it under such procedure,
Any party may request the appointing authority to take the
necessary measure to appoint an arbitrator, unless the agreement on the
appointment procedure provides other means for securing the appointment.
A decision on a matter entrusted by paragraphs (c) and (d) of
this to the appointing authority shall be immediate executory and not be
subject to a motion for reconsideration or appeal. The appointing authority
shall have in appointing an arbitrator, due regard to any qualifications
required of the arbitrator by the agreement of the parties and to such
25
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 the Rules of Court of the Special ADR Rules. (Article
4.11., IRR, RA 9285)
What are the grounds to challenge an Arbitrator?
The grounds for challenge are as follows:
When a person is approached in connection with his/her
possible appointment as an arbitrator, he/she impartiality or independence.
An arbitrator, from the time of his/her appointment and throughout the
arbitral proceedings shall, without delay, disclose any such circumstance to
the parties unless they have already been informed of them him/her.
An arbitrator may be challenged only if circumstances exist
that give rise to justifiable doubts as to his/her impartiality or
independence, or if he/she does not possess qualifications agreed to by the
parties. A party may challenge an arbitrator appointed by him/her, or in
whose appointment he/she has participated, only for reasons of which he/she
becomes aware after the appointment has been made. (Article 4.12., IRR, RA
9285)
What is the procedure in challenging an Arbitrator?
The challenge procedure is as follows:
The parties are free to agree on a procedure for challenging
an arbitrator, subject to the provisions of this Article.
Failing such agreement, a party who intends to challenge an
arbitrator shall, within fifteen (15) days after becoming aware of the
constitution of the arbitral tribunal or after becoming aware of any
circumstances referred to in paragraph (b) of Article 4.12 (Grounds for
Challenge,) send a written statement of the reasons for the challenge to the
arbitral tribunal. Unless the challenged arbitrator withdraws from his/her
office or the other party agrees to the challenged arbitrator withdraws from
his/her office or the party agrees to the challenge, the arbitral tribunal
shall decide on the challenge.
If a challenge under any procedure agreed upon by the parties
or under the procedure of paragraph (b) of this Article is not successful,
the challenging party may request the appointing authority, within thirty
(30) days after having received notice of the decision rejecting the
challenge, to decide on the challenge, which decision shall be immediately
executory and not subject to motion for reconsideration or appeal. While
such a request is pending, the arbitral tribunal, including the challenged
arbitrator, may continue the arbitral proceedings and make an award.
A party may bring a petition under this Article before the
court in accordance with the Rules of Court or the Special ADR Rules.
(Article 4.13., IRR, RA 9285)
What is the consequence if there is failure or impossibility to act as an
Arbitrator?
If an arbitrator becomes de jure or de facto unable to perform
his/her functions or for other reasons fails to act without undue delay,
his/her mandate terminates if he/she withdraws from his/her office or if the
parties agree on the termination. Otherwise, if the controversy remains
concerning any of these grounds, any party may request the appointing
authority to decide on the termination of the mandate, which decision shall
be immediately executory and not subject for motion for reconsideration or
appeal.I
26
If, under this Article or paragraph (b) of Article 4.13
(Challenge Procedure), an arbitrator withdraws from his/her office or a
party agrees for termination of the mandate of an arbitrator, this does not
imply acceptance of the validity of any ground referred to in this Article
or in paragraph (b) of Article 4.12 (Grounds for Challenge). (Article 4.14.,
IRR, RA 9285)
What is the consequence if the mandate of an Arbitrator is terminated?
Where the mandate of an arbitrator terminates under Articles
4.13 (Challenge Procedure) and 4.14 (Failure or Impossibility to Act) or
because of his/her withdrawal from office for any other reason or because of
the revocation of his/her mandate, a substitute arbitrator shall be
appointed according to the rules that were applicable to the appointment of
the arbitrator being replaced. (Article 4.15., IRR, RA 9285)
JURISDICTION OF ARBITRAL TRIBUNAL
Discuss the competence of Arbitral Tribunal to Rule on jurisdiction.
The arbitral tribunal may rule on its own jurisdiction,
including any objections with respect to the existence or validity of the
arbitration agreement or any condition precedent to the filing of the
request for arbitration. For that purpose, 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.
A plea that the arbitral tribunal does not have jurisdiction
shall be raised not later than the submission of the statement of defense
(I.e., in an Answer or Motion to Dismiss). A party is not precluded from
raising such plea by the fact that he/she has appointed, or participated in
the appointment of, an arbitrator. 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.
The arbitral tribunal may rule on a plea referred to in
paragraph (b) 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 (30)
days after having received notice of that ruling, the Regional Trial Court
to decide the matter, which decision shall be immediately executory and not
subject to motion for reconsideration or appeal. While such a request is
pending, the arbitral tribunal may contribute the arbitral proceedings and
make an award. (Article 4.16., IRR, RA 9285)
Does the Arbitral tribunal have the power to order interim measures?
Unless otherwise agreed by the parties, the arbitral tribunal
may, at the request of the party, order any party to take such interim
measures of protection as the arbitral tribunal may consider necessary in
respect of the subject to matter of the dispute following paragraph (c) of
this Article. Such interim measures may include, but shall not be limited
to, preliminary injunction directed against a party, appointment of
receivers, or detention, preservation, inspection of property that is the
subject of the dispute in arbitration.
After constitution of the arbitral tribunal, and during
arbitral proceeding, a request for interim measures of protection, or
27
modification thereof shall be made with the arbitral tribunal. 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 the request.
The following rules on interim or provisional relief shall be
observed: Any party may request that the interim or provisional relief shall
be observed:
Such relief may be granted:
 To prevent irreparable loss or injury;
 To provide security for the performance of an obligation;
 To produce or preserve evidence
 To compel any other appropriate acts or omissions.
The order granting provisional relief may be conditioned upon
the provision of security or any act or omission specified in order.
Interim or provisional relief is requested by written application
transmitted by reasonable means to the arbitral tribunal and the party
against whom relief is sought, describing in appropriate details of the
precise relief, the party against whom the relief is requested, the ground
for the relief, and the evidence, supporting the request.
The order granting or denying an application for the interim
relief 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. (Article 4.17., IRR, RA 9285)
CONDUCT OF ARBITRAL PROCEEDINGS
The conduct of Arbitral proceedings.
On Treatment of Parties
The parties shall be treated with equality and each shall be
given a full opportunity of presenting his/her case. (Article 4.18., IRR, RA
9285)
On Determination of the Rules of Procedures
Subject to the provisions of this Chapter, the parties are
free to agree on the procedure to be followed by the arbitral tribunal in
conducting the proceedings.
Falling such agreement, the arbitral tribunal may, subject to
this Chapter, conduct the arbitration in such manner as it considers
appropriate. Unless the arbitral tribunal considers it inappropriate, the
UNCITRAL Arbitration Rules adopted by the UNCITRAL on 28 April 1976 and the
UN General Assemble on 15 December 1976 shall apply subject to the following
clarification: All references to the "Secretary-General of the Permanent
Court of Arbitration at the Hague" shall be deemed to refer to the
appointing authority.
The power conferred upon the arbitral tribunal includes the
power to determine the admissibility, relevance, materiality and weight of
any evidence. (Article 4.19., IRR, RA 9285)
On Venue of Arbitration
The parties are free to agree on the place of arbitration.
Failing such agreement, the place of arbitration shall be in Metro Manila
28
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.
Notwithstanding the rule stated in paragraph (a) of this
provision, 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. (Article 4.20., IRR, RA
9285)
On the Commencement of Arbitral Proceedings
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. (Article 4.21., IRR, RA 9285)
On the Language to be Used
The parties are free to agree on the language or languages to
be used in the arbitral proceedings. Failing such agreement, the language to
be used shall be English. This agreement, 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 or determined by the arbitral tribunal in accordance
with paragraph (a) of this Article. (Article 4.222., IRR, RA 9285)
On the Statements of Claim and Defense
Within the period of time agreed by the parties or determined
by the arbitral tribunal, the claimant shall state the facts supporting
his/her/its claim, the points at issue and the relief or remedy sought, and
the respondent shall state his/her/its defense in respect of these
particulars, unless the parties have otherwise agreed as to the required
elements of such statements. 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.
Unless otherwise agreed by the parties, either party may amend
or supplement his/her 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. (Article
4.23., IRR, RA 9285)
On Hearing and Written Proceedings
Subject to any contrary agreement by the parties, the arbitral
tribunal shall decide whether 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. However, unless the parties
have agreed that no hearings at an appropriate stage of the proceedings, if
so requested by a party.
The parties shall be given sufficient advance notice of any
hearing and of any meeting of the arbitral tribunal for the purposes of
inspection goods, other property or documents.
All statements, documents or other information supplied to the
arbitral by one party shall be communicated to the other party. Also, an
expert report or evidentiary document on which the arbitral tribunal may
rely in making its decision shall be communicated to the parties. (Article
4.24., IRR, RA 9285)
29
On Default of a party
Unless otherwise agreed by the parties, if, without, showing
sufficient cause, the claimant fails to communicate his statement of claim
in accordance with paragraph (a) Article 4.23 (Statement of Claim and
Defense), the arbitral tribunal shall terminate the proceedings;
the respondent fails to communicate his/her/its statement of defense in
accordance with paragraph (a) Article 4.23 (Statement of Claim and Defense),
the arbitral tribunal shall continue the proceedings without treating such
failure in itself as an admission of the claimant’s allegations. Any party’s
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. (Article 4.25., IRR, RA 9285)
On Expert appointed by the Arbitral Tribunal
Unless otherwise agreed by the parties, the arbitral tribunal,
may appoint one or more experts to report to it on specific issues to be
determined by the arbitral tribunal; or 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/her inspection.
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/her 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. (Article 4.26., IRR,
RA 9285)
On Court Assistance in Taking Evidence
The arbitral tribunal or a party with the approval of the
arbitral tribunal may request from a court of the Philippines assistance in
taking evidence. The court may execute the request within its competence and
according to its rules on taking evidence.
The arbitral tribunal shall have the power to require any person to attend a
hearing as a witness. The arbitral tribunal shall have the power to subpoena
witnesses and documents when the relevancy of the testimony and the
materiality thereof has been demonstrated to it. The arbitral tribunal may
also require the retirement of any witness during the testimony of any other
witness.
A party may bring a petition under this Section before the
court in accordance with the Rules of Court or the Special ADR Rules.Article
4.27., IRR, RA 9285)
On Rules Applicable to the Substance of Dispute
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 its conflict of laws
rules.
Failing any designation by the parties, the arbitral tribunal
shall apply the law determined by the conflict of laws rules, which it
considers applicable.
The arbitral tribunal shall decide ex aequo et bono or as
30
amiable compositeur only if the parties have expressly authorized it to do
so.
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. (Article 4.28., IRR, RA 9285)
Decision-making by Panel of Arbitrators
In arbitral proceedings with more than one arbitrator, any
decision of the arbitral tribunal shall be made, unless otherwise agreed by
other 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. (Article 4.29., IRR, RA
9285)
Settlement
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.
An award on agreed terms shall be made in accordance with the
provisions of Article 4.31 (Form and Contents of Award), 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. (Article 4.30., IRR, RA 9285)
On Forum and Contents of Award
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 or the award
is an award on agreed terms under paragraph (a) of Article 4.20 (Place of
Arbitration).
The award shall state its date and the place of arbitration as
determined in accordance with paragraph (a) of this Article. The award shall
be deemed to have been made at that place.
After the award is made, a copy signed by the arbitrators in
accordance with paragraph (a) of this Article shall be delivered. to each
party. (Article 4.31., IRR, RA 9285)
On termination of Proceedings
The arbitral proceedings are terminated by the final award or
by an order of the arbitral tribunal in accordance with paragraph (b) of
this Article.
The arbitral tribunal shall issue an order for the termination
of the arbitral proceedings when:
 The claimant withdraws his/her/its claim, unless the respondent objects
thereto and the arbitral tribunal recognized a legitimate interest on
his/her/its part in obtaining a final settlement of the dispute;
 The parties agree the termination of the proceedings;
 The arbitral tribunal finds that the continuation of the proceedings has
for any other reason become unnecessary or impossible.
 The mandate of the arbitral tribunal ends with termination of the
31

arbitral proceedings subject to the provisions of Articles 4.33
(Correction and Interpretation of Award, Additional Award) and paragraph
(d) of Articles 4.34 (Application for Setting Aside an Exclusive
Recourse against Arbitral Award).
Notwithstanding the foregoing, the arbitral tribunal may, for special
reasons, reserve in the final award or order, a hearing to quantity
costs and determine which party shall bear the costs or the division
thereof as may be determined to be equitable. Pending determination of
this issue, the award shall not be deemed final for purposes of appeal
,vacation, correction, or any post-award proceedings. (Article 4.32.,
IRR, RA 9285)
On Correction and Interpretation of Award, Additional Award
Within thirty (30) days from receipt of the award, unless
another period of time has been agreed upon by the parties:
A party may, with notice to the other party, request the arbitral tribunal
to correct in the award any errors in computation, any clerical or
typographical errors or any errors of similar nature;
A party may, it so agreed by the parties and with notice to
the other party, 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 (30) days from
receipt of the request. The interpretation shall form part of the award.
The arbitral tribunal may correct any error of the type
referred to in paragraph (a) of this Article on its own initiative within
thirty (30) day from the date of the award.
Unless otherwise agreed by the parties, a party may, with
notice to the other party, request, within thirty (30) days 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 (60) days.
The arbitral tribunal may extend, if necessary, the period of
time within which it shall make a correction interpretation or an additional
award under paragraphs (a) and (b) of this Article.
The provisions of Article 4.31 (Form and Contents of Award) shall apply to a
correction or interpretation of the award or to an additional award.
(Article 4.33., IRR, RA 9285)
On Application for Setting Aside an Exclusive course against Arbitral Award
Recourse to a court against an arbitral award may be made only by
application for setting aside in accordance with second and third paragraphs
of this Article.
An arbitral award may be set aside by the Regional Trial Court only If:
the party making the application furnishes proof that:
a party to the arbitration agreement 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 Philippines; or
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 the award deals with a dispute not
contemplated by or not failing 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
32
submitted to arbitration can be separated from those not so submitted, only
the part of the award which contains decisions on matters not submitted to
arbitration may be set aside; or 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 ADR Act
from which the parties cannot derogate, or, falling such agreement, was not
in accordance with ADR Act; or
the Court finds that: the subject-matter of the dispute is not capable of
settlement by arbitration under the law of the Philippines; or the award is
in conflict with the public policy of the Philippines.
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 4.33
(Correction and Interpretation of Award,Additional Award) from the date on
which that request has been disposed of by the Arbitral tribunal.
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 resume the arbitral proceedings or take
such other action as in the arbitral tribunal's opinion will eliminate the
grounds for setting aside.
A party may bring a petition under this Article before the
court in accordance with the Special ADR Rules. (Article 4.34., IRR, RA
9285)
CHAPTER VI: RECOGNITION AND ENFORCEMENT OF AWARDS
What are the rules on recognition and enforcement?
The Rules on recognition and enforcement are as follows:
A foreign arbitral award shall be recognized as binding and,
upon petition in writing to the regional trial Court, shall be enforced
subject to the provisions of this Article and of Article 4.36 (Grounds for
Refusing Recognition or Enforcement).
The petition for recognition and enforcement of such arbitral
awards shall be filled with the Regional trial Court In accordance with
Special ADR Rules.
Convention Award - The New York Convention shall govern the recognition and
enforcement of arbitral awards covered by said Convention. The petitioner
shall establish that the country in which the foreign arbitration award was
made is a party to the New York Convention.
Non-Convention Award – 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,
on grounds of comity and reciprocity, recognize and enforce a non-convention
award as a convention award.
The party relying on an award or applying for its enforcement
shall file with the Regional Trial Court the original or duly authenticated
copy of the award and the original arbitration agreement or a duly
authenticated copy thereof. If the award or agreement is not made in an
official language of the Philippines, the party shall supply a duly
certified translation thereof into such language.
A foreign arbitral award when confirmed by a court of a
33
foreign country, shall be recognized and 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.
If the Regional Trial Court has recognized the arbitral award
but an application for rejection and/or) suspension of enforcement of that
award is subsequently made, the Regional Trial Court may, if it considers
the application to be proper, vacate or suspend the decision to enforce that
award and may also, on the application of the party claiming recognition or
enforcement of that award, order the other party seeking rejection or
suspension to provide appropriate security. (Article 4.35., IRR, RA 9285)
What are the grounds for refusing recognition or enforcement
of convention award and non-convention awards? The grounds for refusing
recognition or enforcement are as follows:
WITH RESPECT TO CONVENTION AWARD
Recognition or enforcement of an arbitral award, made in a
state, which is a party to the New York Convention, may be refused, at the
request of the party against whom it is provoked, only if the party
furnishes to the Regional Trial Court proof that:
a) The parties to the arbitration agreement are, under the law
applicable to them, under some incapacity; or
b) the said agreement is not valid under the law to which the parties
have subjected it or;
c) failing any indication thereon, under the law of the country where
the award was made; or
d) 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 in able to present his case; or
e) the award deals with dispute not contemplated by or not failing
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
f) 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 too place; or
g) the award has not 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.
Recognition and enforcement of an arbitral award may also be refused if the
Regional Trial Court where recognition and enforcement is sought finds that:
a. the subject-matter of the dispute is not capable of settlement by
arbitration under the law of Philippines; or
b. the recognition or enforcement of the award would be contrary to the
public policy of the Philippines.
a) A party to a foreign arbitration proceeding may oppose an
application for recognition and enforcement of the arbitral award in
accordance with the Special ADR Rules only on the grounds enumerated
under paragraph (a) and (c) of Article 4.35 (Recognition and
34
Enforcement). Any other ground raised shall be disregarded by the
Regional Trial Court.
B. WITH RESPECT TO NON-CONVENTION AWARD
A foreign arbitral award rendered in a state which is not a
party to the New York Convention will be recognized upon proof of the
existence of comity and reciprocity and may be treated as a convention
award. If not so treated and if no comity or reciprocity exists, the nonconvention award cannot be recognized and/or enforced but may be deemed as
presumptive evidence of a right as between the parties in accordance with
Section 48 of the Rules of Court.
If the Regional Trial Court has recognized the arbitral award
but a petition for suspension of enforcement of that award is subsequently
made, the Regional Trial Court may, if it considers the petition to be
proper, suspend the proceedings to enforce the award, and may also, on the
application of the party claiming recognition or enforcement of that award,
order the other party seeking suspension to provide appropriate security.
If the petition for recognition or enforcement of the arbitral
award is filed by a party and a counter-petition for the rejection of the
arbitral award is filed by the other party, the Regional Trial Court may, if
it considers the counter-petition to be proper but the objections thereto
may be rectified or cured, remit the award to the arbitral tribunal for
appropriate action and in the meantime suspend the recognition and
enforcement proceedings and may also on the application of the petitioner
order the counter-petitioner to provide appropriate security. (Article
4.36., IRR, RA 9285)
What is the remedy of the losing party from an Arbitral award rendered by
the Regional Trial Court?
A decision of the Regional Trial Court recognizing, enforcing,
vacating or setting aside 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. (Article 4.37., IRR, RA 9285)
Is the appellant required to post bond?
Yes. The losing party who appeals from the judgment of the
court recognizing and enforcing an arbitral award shall be required by the
Court of Appeals to post a counter-bond executed if favor of the prevailing
party equal to the amount of the award in accordance with the Special ADR
Rules. (Article 4.37., IRR, RA 9285)
Is a stipulation that the arbitral tribunal’s award or decision shall be
final and valid?
Yes. Any stipulation by the parties that the arbitral
tribunal’s award or decision shall be final, and therefore not appealable,
is valid. (Article 4.37., IRR, RA 9285)
What is the consequence if there is a stipulation that the arbitral
tribunal’s award or decision shall be final?
Such stipulation carries with it a waiver of the right to
appeal from an arbitral award. Article 4.18., IRR, RA 9285)
Is the remedy of certiorari under the Rule 65 of the Rules of Court
available if appeal is deemed waived by virtue of the aforesaid stipulation?
Yes. The implementing rules expressly provide that it is
without prejudice to judicial review by way of certiorari under Rule 65 of
the Rules of Court. (Article 4.18., IRR, RA 9285).
35
What is the nature of the proceedings involved in the following?
Recognition and enforcement of an arbitration agreement or
Vacation or setting aside of an arbitral award, and any application with a
court for arbitration assistance and supervision, except appeal.
Under Article 4.38 of the IRR of RA 9825,, proceedings for
recognition and enforcement of an arbitration agreement or for vacation or
setting aside an arbitral award, and any application with a court for
arbitration assistance and supervision, except appeal shall be deemed as
special proceedings.
Which Court has jurisdiction to try these cases cite the venue thereof.
The cases may be filed with the Regional Trial Court where:
 the 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 its place of
business; or
 in the National Capital Judicial Region at the option of the applicant.
(Article 4.38., IRR, RA 9285)
Is notice of proceedings to parties mandatory?
Yes. 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. (Article 4.39., IRR, RA 9285)
Is a party entitled to legal representation in international commercial
arbitration conducted in the Philippines?
Yes. In international commercial arbitration conducted in the
Philippines, a party may be represented by any person of his/her 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/she appears.
(Article 4.40., IRR, RA 9285)
May the Arbitration proceedings be disclosed to the public?
No. The arbitration proceedings, including the records,
evidence and the arbitral award, shall be considered confidential and shall
not be poolside except:
 with the consent of the parties; or
 for the limited purpose of disclosing to the court 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.. (Article 4.41., IRR, RA 9285)
Is a petition for recognition and enforcement of awards summary in nature?
Yes. A petition for recognition and enforcement of awards
brought before the court shall be heard and dealt with summarily in
36
accordance with the Special ADR Rules. (Article 4.42., IRR, RA 9285)
What is the consequence when a party dies making submission or a contract to
arbitrate?
When a party dies after making a submission or a contract to
arbitrate as prescribed in these Rules, the proceedings may be begun or
continued upon the application of, or notice to, his/her executor or
administrator, or temporary administrator of his/her estate. In any such
case, the court may issue an order extending the time within which notice of
a motion to recognize or vacate an award must be served. Upon recognizing an
award, where a party has died since it was filed or delivered, the court
must enter judgement in the name of the original party; and the proceedings
thereupon are the same as where a party dies after a verdict. (Article
4.43., IRR, RA 9285)
What rules shall govern a multi-party arbitration?
When a single arbitration involves more than two parties, the
foregoing rules, to the extent possible, shall be used, subject to such
modifications consistent with this Chapter as the arbitral tribunal shall
deem appropriate to address possible complexities of a multi-party
arbitration. (Article 4.44., IRR, RA 9285)
May the parties agree to consolidate proceedings and concurrent hearings?
Yes. The parties and the arbitral tribunal may agree - that
the arbitration proceedings shall be consolidated with other arbitration
proceedings; or that concurrent hearings shall be held, on such terms as may
be agreed.
Unless the parties agree to confer such power on the arbitral
tribunal, the tribunal has no power to order consolidation of arbitration
proceedings or concurrent hearings. (Article 4.45., IRR, RA 9285)
The costs of Arbitration in arbitral Tribunal’s Award. Article 4.46
provides;
The arbitral tribunal shall fix the costs of arbitration in
its award. The term "costs" include only:
a. The fees of the arbitral tribunal to be stated separately as to each
arbitrator and to be fixed by the tribunal itself in accordance with the
paragraph (b) of this Article;
b. The travel and other expenses incurred by the arbitrators;
The costs of expert advice and of other assistance required by the arbitral
tribunal;
c. The travel and other expenses of witnesses to the extent such expenses
are approved by the arbitral tribunal;
d. The costs for legal representation and assistance of the successful
party if such costs were claimed during the arbitral proceedings, and
only to the extent that the arbitral tribunal determines that the amount
of such costs is reasonable;
e. Any fees and expenses of the appointing authority.
The fees of the arbitral tribunal shall be reasonable in
amount, taking into account the amount in dispute, the complexity of the
subject matter, the time spent by the arbitrators and any other relevant
circumstances of the case.
1. If an appointing authority has been agreed upon by the parties and if
such authority has issued a schedule of fees for arbitrators in
international cases which it administers, the arbitral tribunal in
fixing its fees shall take that schedule of fees into account to the
extent that it considers appropriate in the circumstances of the case.
37
2. If such appointing authority has not issued a schedule of fees for
arbitrators in international cases, any party may, at any time request
the appointing authority to furnish a statement setting forth the basis
for establishing fees which is customarily followed in international
cases in which the authority appoints arbitrators. If the appointing
authority consents to provide such a statement, the arbitral tribunal,
in fixing its fees, shall take such information into account to the
extent that it considers appropriate in the circumstances of the case.
3. In cases referred to in the second and third sub-paragraphs of paragraph
(b) of this Article, when a party so requests and the appointing
authority consents to perform the function, the arbitral tribunal shall
fix its fees only after consultation with the appointing authority which
may make any comment it deems appropriate to the arbitral tribunal
concerning the fees.
Except as provided in the next sub-paragraph of this
paragraph, the costs of arbitration shall, in principle, be borne by the
unsuccessful party. However, the arbitral tribunal may apportion each of
such costs between the parties if it determines that apportionment is
reasonable, taking into account the circumstances of the case.
With respect to the costs of legal representation and
assistance referred to in paragraph (3) of paragraph (a) (iii) of this
Article, the arbitral tribunal, taking into account the circumstances of the
case, shall be free to determine which party shall bear such costs or may
apportion such costs between the parties if it determines that appointment
is reasonable.
4. When the arbitral tribunal issues an order for the termination of the
arbitral proceedings or makes an award on agreed terms, it shall fix the
costs of arbitration referred to in paragraphs (b), (c) and (d) of this
Article in the context of that order or award.
The arbitral tribunal, on its establishment, may request each
party to deposit an equal amount as an advance for the costs referred to in
paragraphs (i), (ii) and (iii) of paragraph (a) of this Article.
During the course of the arbitral proceedings, the arbitral
tribunal may request supplementary deposits from the parties.
5. If an appointing authority has been agreed upon by the parties and when
a party so requests and the appointing authority consents to perform the
function, the arbitral tribunal shall fix the amounts of any deposits or
supplementary deposits only after consultation with the appointing
authority which may make any comments to the arbitral tribunal which it
deems appropriate concerning the amount of such deposits and
supplementary deposits.
6. If the required deposits are not paid in full within thirty (30) days
after receipt of the request, the arbitral tribunal shall so inform the
parties in order that the required payment may be made. If such payment
is not made, the arbitral tribunal may order the suspension or
termination of the arbitral proceedings.
After the award has been made, the arbitral tribunal shall
render an accounting to the parties of the deposits received and return any
unexpended balance to the parties. (Article 4.46., IRR, RA 9285)
38
CHAPTER VII: DOMESTIC ARBITRATION
What are the terms applicable to this chapter/segment? Explain.
a. Ad hoc Arbitration means arbitration administered by an arbitrator
and/or the parties themselves. An arbitration administered by an
institution shall be regarded as ad hoc arbitration if such institution
is not a permanent or regular arbitration institution in the
Philippines.
b. Appointing Authority in Ad Hoc Arbitration means, in the absence of an
agreement, the National President of the IBP or his/her duly authorized
representative.
c. Appointing Authority Guidelines means the set of rules approved or
adopted by an appointing authority for the making of a Request for
Appointment, Challenge, termination of the Mandate of Arbitrator/s and
for taking action thereon.
d. Arbitration means a voluntary dispute resolution process in which one or
more arbitrators, Appointed in accordance with the agreement of the
parties or these Rules, resolve a dispute by rendering an award.
e. Arbitral Tribunal means a sole arbitrator or a panel, board or committee
of arbitrators.
f. Claimant means a person/s with a claim against another and who
commence/s arbitration against the latter.
g. Court means, unless otherwise specified in these Rules, a Regional Trial
Court.
h. Day means calendar day.
i. Domestic Arbitration means arbitration that is not international as
defined in Article 1(3) of the Mode Law.
j. Institutional Arbitration means arbitration administered by an entity,
which is registered as a domestic corporation with the Securities and
Exchange Commission (SEC) and engaged in. among others, arbitration of
disputes in the Philippines on a regular and permanent basis.
k. Request for Appointment means the letter-request to the appointing
authority of either or both parties for the appointment of arbitrator/s
or of the two arbitrators first appointed by the parties for the
appointment of the third member of an arbitral tribunal.
l. Representative is a person duly authorized in writing by a party to a
dispute, who could be a counsel, a person in his/her employ or any other
person of his/her choice, duly authorized to represent said party in the
arbitration proceedings.
m. Respondent means the person/s against whom the claimant commence/s
arbitration.
n. Written communication means the pleading, motion, manifestation, notice,
order, award and any other document or paper submitted or filed with the
arbitral tribunal or delivered to a party.
What is the Scope of application of Domestic Arbitration in this
segment/chapter?
The scope of application of Domestic Arbitration in Chapter 5,
IRR or RA 9285 includes:
Domestic arbitration, which is not international as defined in
paragraph C8 of Article 1.6 shall continue to be governed by Republic Act
No. 876, otherwise known as "The Arbitration Law", as amended by the ADR
Act. Articles 8, 10, 11, 12, 13, 14, 18 and 19 and 29 to 32 of the Model Law
and Sections 22 to 31 of the ADR Act are specifically applicable to domestic
arbitration.
In the absence of a specific applicable provision, all other
rules applicable to international commercial arbitration may be applied in a
39
suppletory manner to domestic arbitration.
This chapter in the IRR shall apply to domestic arbitration
whether the dispute is commercial, as defined in Section 21 of the ADR Act,
or non- commercial, by an arbitrator who is a private individual appointed
by the parties to hear and resolve their dispute by rendering an award;
Provided that, although a construction dispute may be commercial, it shall
continue to be governed by E.O. No. 1008, s.1985 and the rules promulgated
by the Construction Industry Arbitration Commission.
Two or more persons or parties may submit to arbitration by one or more
arbitrators any controversy existing between them at the time of the
submission and which may be the subject of an action; or the parties to any
contract may in such contract agree to settle by arbitration a controversy
thereafter arising between them. Such submission or contract shall be valid,
enforceable and irrevocable, save upon such grounds as exist at law for the
revocation of any contract.
Such submission or contract may include questions arising out
of valuations, appraisals or other controversies which may be collateral,
incidental, precedent or subsequent to any dispute between the parties.
A controversy cannot be arbitrated where one of the parties to
the controversy is an infant, or a person judicially declared to be
incompetent, unless the appropriate court having jurisdiction approved a
petition for permission to submit such controversy to arbitration made by
the general guardian or guardian ad litem of the infant or of the
incompetent.
But where a person capable of entering into a submission or
contract has knowingly entered into the same with a person incapable of so
doing, the objection on the ground of incapacity can be taken only in behalf
of the person so incapacitated. (Article 5.1., IRR, RA 9285)
How should the delivery of written communication be made?
The delivery of written communication can be made through the
following:
Except as otherwise agreed by the parties, a written
communication from one party to the other or to the arbitrator or to an
arbitration institution or from the arbitrator or arbitration institution to
the parties shall be delivered to the addressee personally, by registered
mail or by courier service. Such communication shall be deemed to have been
received on the date it is delivered at the addressee’s address of record,
place of business, residence or last known address. The communication, as
appropriate, shall be delivered to each party to the arbitration and to each
arbitrator, and, in institutional arbitration, one copy to the administering
institution.
During the arbitration proceedings, the arbitrator may order a
mode of delivery and a rule for receipt of written communications different
from that provided in paragraph (a) of this Article.
If a party is represented by counsel or a representative,
written communications for that party shall be delivered to the address of
record of such counsel or representative.
Except as the parties may agree or the arbitrator may direct
otherwise, a written communication may be delivered by electronic mail or
facsimile transmission or by such other means that will provide a record of
the sending and receipt thereof at the recipient’s mailbox (electronic
inbox). Such communication shall be deemed to have been received on the same
date of its transmittal and receipt in the mailbox (electronic inbox).
(Article 5.2., IRR, RA 9285)
When is a party deemed to have waived his right to object? The following
constitutes a waiver of right to object:
40
A party shall be deemed to have waived his right to object to
non-compliance with any non-mandatory provision of these Rules (from which
the parties may derogate) or any requirement under the arbitration agreement
when:


he/she/it knows of such non-compliance; and
proceeds with the arbitration without stating his/her/its objections to
such non-compliance without undue delay or if a time-limit is provided
therefor, within such period of time.
If an act is required or allowed to be done under this
Chapter, unless the applicable rule or the agreement of the parties provides
a different period for the act to be done, it shall be done within a period
of thirty (30) days from the date when such act could have been done with
legal effect. (Article 5.3., IRR, RA 9285)
Does a Court have the right to intervene?
In matters governed by this Chapter, no court shall intervene
except in accordance with the Special ADR Rules. (Article 5.4., IRR, RA
9285)
What other functions may be performed by the appointing authority?
Article 5.5 (Court or Other Authority for Certain Functions of
Arbitration Assistance and Supervision) of the IRR of RA 9285 provides:
“The functions referred to in paragraphs (c) and (d) of Article 5.10
(Appointment of Arbitrators), paragraph (a) of Article 5.11 (Grounds for
Challenge), and paragraph (a) of Article 5.13 (Failure or Impossibility to
Act), 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.” (Article 5.5., IRR, RA 9285)
ARBITRATION AGREEMENT
What is the form of an arbitration agreement?
An arbitration agreement shall be in writing. An agreement is
in writing if it is contained in a document signed by the parties or in an
exchange of letters, telex, telegrams or other means of telecommunication
which provide a record of the agreement, or in an exchange of statements of
claim and defense in which the existence of an agreement is alleged by one
party and not denied by the other. The reference in a contract to a document
containing an arbitration clause constitutes an arbitration agreement
provided that the contract is in writing and the reference is such as to
make that clause part of the contract. (Article 5.6, IRR, RA 9285)
May a party request the court to stay the action and refer the dispute to
arbitration?
A party to an action may request the court before which it is
pending to stay the action and to refer the dispute to arbitration in
accordance with their arbitration agreement not later than the pre-trial
conference. Thereafter, both parties may make a similar request with the
court. The parties shall be referred to arbitration unless the court finds
that the arbitration agreement is null and void, inoperative or incapable of
being performed. (Article 5.7, par. a, IRR, RA 9285)
Where an action referred to in paragraph (a) of this Article
has been brought, arbitral proceedings may nevertheless be commenced or
41
continued, and an award may be made, while the issue is pending before the
court. (Article 5.7, par. b, IRR, RA 9285)
What must the court do when the action is commenced by or against multiple
parties, one or more of whom are parties to an arbitration agreement?
Where the action is commenced by or against multiple parties,
one or more of whom are parties to an arbitration agreement, the court shall
refer to arbitration those 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. (Article 5.7, par. c, IRR, RA 9285)
May a party request for an Interim measure of protection?
Yes. It is not incompatible with an arbitration agreement for
a party to request from a court, before the constitution of the arbitral
tribunal or during arbitral proceedings, an interim measure of protection
and for a court to grant such measure.
After the 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. (Article 5.8, pars. a
and b respectively, IRR, RA 9285)
What are the rules on interim or provisional relief that must be observed?
The following rules on interim or provisional relief shall be observed:
Any party may request that interim or provisional relief be
granted against the adverse party.
Such relief may be granted:
 To prevent irreparable loss or injury;
 To provide security for the performance of an obligation;
 To produce or preserve evidence; or
 To compel any other appropriate act or omissions.
The order granting provisional relief may be conditioned upon
the provision of security or any act or omission specified in the order.
Interim or provisional relief is requested by written
application transmitted by reasonable means to the arbitral tribunal and the
party against whom relief is sought, describing in appropriate detail of the
precise relief, the party against whom the relief is requested, the ground
for the relief, and the evidence supporting the request.
The order either grating or denying an application for interim relief 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. (Article 5.8., IRR, RA 9285)
What are the matters deemed included in the interim measures 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 this
Article. Such interim measures may include but shall not be limited to
preliminary injunction directed against a party, appointment of receivers or
42
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 measure ordered by an arbitral
tribunal. (Article 5.8, par. d, IRR, RA 9285)
COMPOSITION OF ARBITRAL TRRIBUNAL
How many Arbitrators must constitute an Arbitral Tribunal?
The parties are free to determine the number of arbitrators.
Failing such determination, the number of arbitrators shall be three (3).
(Article 5.9., IRR, RA 9285)
Who may be appointed as arbitrators?
Any person appointed to serve as an arbitrator must be of
legal age, in full enjoyment of his/her civil rights and knows how to read
and write. No person appointed to serve 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/she 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.
No party shall select as an arbitrator any person to act as
his/her champion or to advocate his/her cause. (Article 5.10, par. a, IRR,
RA 9285)
What is the procedure in the appointment of Arbitrator or Arbitrators?
The parties are free to agree on a procedure of appointing the
arbitrator or arbitrators. If, in the contract for arbitration or in the
submission, a provision is made for a method of appointing an arbitrator or
arbitrators, such method shall be followed. (Article 5.10, par. b, IRR, RA
9285)
Failing such agreement,in an arbitration with three (3)
arbitrators, each party shall appoint one (1) arbitrator, and the two (2)
arbitrators thus appointed shall appoint the third arbitrator; if a party
fails to appoint the arbitrator within thirty (30) 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 (30) days of their appointment,
the appointment shall be made, upon request of a party, by the appointing
authority;in an arbitration with a sole arbitrator, if the parties are
unable to agree on the arbitrator, he/she shall be appointed, upon request
of a party, by the appointing authority. (Article 5.10, par. c, IRR, RA
9285)
Where, under an appointment procedure agreed upon by the parties,
a party fails to act or appoint an arbitrator as required under such
procedure, or the parties, or two (2) arbitrators, are unable to appoint an
arbitrator or reach an agreement expected of them under such procedure, or a
third party, including an institution, fails to appoint an arbitrator or to
perform any function entrusted to it under such procedure, or
The multiple claimants or the multiple respondents is/are unable to appoint
its/their respective arbitrator, any party may request the appointing
authority to appoint an arbitrator.
In making the appointment, the appointing authority shall
summon the parties and their respective counsel to appear before said
authority on the date, time and place set by it, for the purpose of
selecting and appointing a sole arbitrator. If a sole arbitrator is not
appointed in such meeting, or the meeting does not take place because of the
43
absence of either or both parties despite due notice, the appointing
authority shall appoint the sole arbitrator. (Article 5.10, par. d, IRR, RA
9285)
If the default appointment of an arbitrator is objected to by
a party on whose behalf the default appointment is to be made, and the
defaulting party requests the appointing authority for additional time to
appoint his/her arbitrator, the appointing authority, having regard to the
circumstances, may give the requesting party not more than thirty (30) days
to make the appointment.
If the objection of a party is based on the ground that the
party did not fail to choose and appoint an arbitrator for the arbitral
tribunal, there shall be attached to the objection the appointment of an
arbitrator together with the latter’s acceptance thereof and curriculum
vitae. Otherwise, the appointing authority shall appoint the arbitrator for
that party. (Article 5.10, par. e, IRR, RA 9285)
In making a default appointment, the appointing authority
shall have regard to such considerations as are likely to secure the
appointment of an independent and impartial arbitrator. In order to achieve
speedy and impartial justice and to moderate the cost of arbitration, in
choosing an arbitrator, the appointing authority shall give preference to a
qualified person who has a place of residence or business in the same
general locality as the agreed venue of the arbitration and who is likely to
accept the arbitrator’s fees agreed upon by the parties, or as fixed in
accordance either with the internal guidelines or the Schedule of Fees
approved by the administering institution or by the appointing authority.
(Article 5.10, par. f, IRR, RA 9285)
The appointing authority shall give notice in writing to the parties of the
appointment made or its inability to comply with the Request for Appointment
and the reasons why it is unable to do so, in which later case, the
procedure described under Article 5.5 (Court or Other Authority for Certain
Functions of arbitration Assistance and Supervision) shall apply. (Article
5.10, par. g, IRR, RA 9285)
A decision on a matter entrusted by this Article to the appointing authority
shall be immediately executory and not subject to appeal or motion for
reconsideration. The appointing authority shall be deemed to have been given
by the parties discretionary authority in making the appointment but in
doing so, the appointing authority shall have due regard to any
qualification or disqualification of an arbitrator/s under paragraph
of Article 5.10 (Appointment of Arbitrators) as well as any qualifications
required of the arbitrator/s by the agreement of the parties and to such
considerations as are likely to secure the appointment of an independent and
impartial arbitrator. (Article 5.10, par. h, IRR, RA 9285)
The chairman of the arbitral tribunal shall be selected in accordance with
the agreement of the parties and/or the rules agreed upon or, in default
thereof, by the arbitrators appointed. (Article 5.10, par. i, IRR, RA 9285)
Any clause giving one of the agreement, if otherwise valid, shall be
construed as permitting the appointment of one (1) arbitrator by all
claimants and one (1) arbitrator by all respondents. The third arbitrator
shall be appointed as provided above.
If all the claimants or all the respondents cannot decide among themselves
on an arbitrator, the appointment shall be made for them by the appointing
authority. Article 5.10, par. j, IRR, RA 9285)
The appointing authority may adopt Guidelines for the making of a Request
for Appointment. Article 5.10, par. k, IRR, RA 9285)
Except as otherwise provided in the Guidelines of the appointing authority,
if any, a Request for Appointment shall include, as applicable, the
following:
44
the demand for arbitration;
the name/s and curricula vitae of the appointed arbitrator/s;
the acceptance of his/her/its appointment of the appointed arbitrator/s;
any qualification or disqualification of the arbitrator as provided in the
arbitration agreement;
an executive summary of the dispute which should indicate the nature of the
dispute and the parties thereto;
principal office and officers of a corporate party;
the person/s appearing as counsel for the party/ies; and
information about arbitrator’s fees where there is an agreement between the
parties with respect thereto.
In institutional arbitration, the request shall include such further
information or particulars as the administering institution shall require.
Article 5.10, par. l, IRR, RA 9285)
A copy of the Request for Appointment shall be delivered to the adverse
party. Proof of such delivery shall be included in, and shall form part of,
the Request for Appointment filed with the appointing authority. Article
5.10, par. m, IRR, RA 9285)
A party upon whom a copy of the Request for Appointment is communicated may,
within seven (7) days of its receipt, file with the appointing authority
his/her/its objection/s to the Request or ask for an extension of time, not
exceeding thirty (30) days from receipt of the request, to appoint an
arbitrator or act in accordance with the procedure agreed upon or provided
by these Rules.
Within the aforementioned periods, the party seeking the extension shall
provide the appointing authority and the adverse party with a copy of the
appointment of his/her arbitrator, the latter’s curriculum vitae, and the
latter’s acceptance of the appointment. In the event that the said party
fails to appoint an arbitrator within said period, the appointing authority
shall make the default appointment. (Article 5.10, par. n, IRR, RA 9285)
An arbitrator, in accepting an appointment, shall include, in his/her
acceptance letter, a statement that:
a. He/she agrees to comply with the applicable law, the arbitration rules
agreed upon by the parties, or in default thereof, these Rules, and the
Code of Ethics for Arbitrators in Domestic Arbitration, if any;
b. he/she accepts as compensation the arbitrator’s fees agreed upon by the
parties or as determined in accordance with the rules agreed upon by the
parties, or in default thereof, these Rules; and
c. he agrees to devote as much time and attention to the arbitration as the
circumstances may require in order to achieve the objective of a speedy,
effective and fair resolution of the dispute. (Article 5.10, par. 0,
IRR, RA 9285)
What are the grounds to challenge an Arbitrator?
When a person is approached in connection with his/her
possible appointment as an arbitrator, he/she shall disclose any
circumstance likely to give rise to justifiable doubts as to his/her
impartiality, independence, qualifications and disqualifications. An
arbitrator, from the time of his/her 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/her.
A person, who is appointed as an arbitrator notwithstanding
the disclosure made in accordance with this Article, shall reduce the
disclosure to writing and provide a copy of such written disclosure to all
parties in the arbitration.
An arbitrator may be challenged only if:
a. circumstances exist that give rise to justifiable doubts as to his/her
45
impartiality or independence;
b. he/she does not possess qualifications as provided for in this Chapter
or those agreed to by the parties;
c. he/she is disqualified to act as arbitration under these Rules;
d. he refuses to respond to questions by a party regarding the nature and
extent of his professional dealings with a party or its counsel.
If, after appointment but before or during hearing, a person
appointed to serve as an arbitrator shall discover any circumstances likely
to create a presumption of bias, or which he/she believes might disqualify
him/her as an impartial arbitrator, the arbitrator shall immediately
disclose such information to the parties.
Thereafter, the parties may agree in writing:
 to waive the presumptive disqualifying circumstances; or
 to declare the office of such arbitrator vacant. Any such vacancy shall
be filed in the same manner the original appointment was made.
After initial disclosure is made and in the course of the
arbitration proceedings, when the arbitrator discovers circumstances that
are likely to create a presumption of bias, he/she shall immediately
disclose those circumstances to the parties. A written disclosure is not
required where it is made during the arbitration and it appears in a written
record of the arbitration proceedings.
An arbitrator who has or has had financial or professional
dealings with a party to the arbitration or to the counsel of either party
shall disclose in writing such fact to the parties, and shall, in good
faith, promptly respond to questions from a party regarding the nature,
extent and age of such financial or professional dealings. (Article 5.11.,
IRR, RA 9285)
What is the procedure to challenge an Arbitrator?
The procedure to challenge an arbitrator is as follows:
The parties are free to agree on a procedure for challenging
an arbitrator, subject to the provisions of paragraph (c) of this Article.
Failing such agreement, a party who intends to challenge an
arbitrator shall, within fifteen (15) days after becoming aware of the
constitution of the arbitral tribunal or after becoming aware of any
circumstance referred to in paragraph (b) of Article 5.11 (Grounds for
Challenge), send a written statement of the reasons for the challenge to the
arbitral tribunal. Unless the challenged arbitrator withdraws from his/her
office or the other party agrees to the challenge, the arbitral tribunal
shall decide on the challenge.
If a challenge under any procedure agreed upon by the parties
or under the procedure of paragraph (b) of this Article in not successful,
the challenging party may request the appointing authority, within thirty
(30) days after having received notice of the decision rejecting the
challenge, to decide on the challenge, which decision shall be immediately
executory and not subject to appeal or motion for
reconsideration. While such a request is pending, the arbitral tribunal,
including the challenged arbitrator, may continue the arbitral proceedings
and make an award.
If a request for inhibition is made, it shall be deemed as a
challenge.
A party may challenge an arbitrator appointed by him/her/it,
or in whose appointment he/she/it has participated, only for reasons of
which he/she/it becomes aware after the appointment has been made.
The challenge shall be in writing and it shall state specific facts that
46
provide the basis for the ground relied upon for the challenge. A challenge
shall be made within fifteen (15) days from knowledge by a party of the
existence of a ground for a challenge or within fifteen (15) days from the
rejection by an arbitrator of a party’s request for his/her inhibition.
Within fifteen (15) days of receipt of the challenge, the
challenged arbitrator shall decide whether he/she shall accept the challenge
or reject it. If he/she accepts the challenge, he/she shall voluntarily
withdraw as arbitrator. If he/she rejects it, he/she shall communicate,
within the same period of time, his/her rejection of the challenge and state
the facts and arguments relied upon for such rejection.
An arbitrator who does not accept the challenge shall be given
an opportunity to be heard.
Notwithstanding the rejection of the challenge by the
arbitrator, the parties may, within the same fifteen (15) day period, agree
to the challenge.
In default of an agreement of the parties to agree on the
challenge thereby replacing the arbitrator, the arbitral tribunal shall
decide on the challenge within thirty (30) days from receipt of the
challenge.
*If the challenge procedure as agreed upon by the parties or
as provided in this Article is not successful, or a party or the arbitral
tribunal shall decline to act, the challenging party may request the
appointing authority in writing to decide on the challenge within thirty
(30) days after having received notice of the decision rejecting the
challenge. The appointing authority shall decide on the challenge within
fifteen (15) days from receipt of the request. If the appointing authority
shall fail to act on the challenge within thirty (30) days from the date of
its receipt or within such further time as it may fix, with notice to the
parties, the requesting party may renew the request with the court.
The request made under this Article shall include the
challenge, the reply or explanation of the challenged arbitrator and
relevant communication, if any, from either party, or from the arbitral
tribunal.
Every communication required or agreement made under this
Article in respect of a challenge shall be delivered, as appropriate, to the
challenged arbitrator, to the parties, to the remaining members of the
arbitral tribunal and to the institution administering the arbitration, if
any.
A challenged arbitrator shall be replaced if:
 he/she withdraws as arbitrator, or
 the parties agree in writing to declare the office of arbitrator vacant,
or
 the arbitral tribunal decides the challenge and declares the office of
the challenged arbitrator vacant, or
 the appointing authority decides the challenge and declares the office
of the challenged arbitrator vacant, or
 in default of the appointing authority, the court decides the challenge
and declares the office of the challenged arbitrator vacant.
The decision of the parties, the arbitral tribunal, the
appointing authority, or in proper cases, the court, to accept or reject a
challenge is not subject to appeal or motion for reconsideration.
Until a decision is made to replace the arbitrator under this
Article, the arbitration proceeding shall continue notwithstanding the
challenge, and the challenged arbitrator shall continue to participate
therein as an arbitrator. However, if the challenge incident is raised
47
before the court, because the parties, the arbitral tribunal or appointing
authority failed or refused to act within the period provided in paragraphs
(j) and(k) of this Article, the arbitration proceeding shall be suspended
until after the court shall have decided the incident.
The arbitration shall be continued immediately after the court
has delivered an order on the challenging incident. If the court agrees that
the challenged arbitrator shall be replaced, the parties shall immediately
replace the arbitrator concerned.
The appointment of a substitute arbitrator shall be made
pursuant to the procedure applicable to the appointment of the arbitrator
being replaced. (Article 5.12., IRR, RA 9285)
What are the consequences if there is failure or impossibility to act?
If an arbitrator becomes de jure or de facto unable to perform
his/her functions or for other reasons fails to act without undue delay,
his/her mandate terminates if he/she withdraws from his/her office or if the
parties agree on the termination. Otherwise, if a controversy remains
concerning any of these grounds, any party may request the appointing
authority to decide on the termination of the mandate, which decision shall
be immediately executory and not subject to appeal or motion for
reconsideration.
If, under this Article or Article 5.12 (Challenge Procedure),
an arbitrator withdraws from his/her office or a party agrees to the
termination of the mandate of an arbitrator, this does not imply acceptance
Of the validity of any ground referred to in this Article 5.12. (Article
5.13., IRR, RA 9285)
When is the appointment of a substitute arbitrator proper?
Where the mandate of an arbitrator terminates under Articles
5.12 (Challenge Procedure) or 5.13 (Failure or Impossibility) 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/her mandate, a substitute arbitrator shall be appointed
according to the rules applicable to the arbitrator being replaced. (Article
5.14., IRR, RA 9285)
JURISDICTION OF ARBITRAL TRIBUNAL
What are the grounds for objection over the jurisdiction of the arbitral
tribunal?
When a demand for arbitration made by a party to a dispute is
objected to by the adverse party, the arbitral tribunal shall, in the first
instance, resolve the objection when made on any of the following grounds:
a. the arbitration agreement is in existent, void, unenforceable or not
binding upon a person for any reason, including the fact that the
adverse party is not privy to said agreement; or
b. the dispute is not arbitrable or is outside the scope of the arbitration
agreement; or
c. the dispute is under the original and exclusive jurisdiction of a court
or quasi-judicial body,
If a party raises any of the grounds for objection, the same
shall not preclude the appointment of the arbitrator/s as such issue is for
the arbitral tribunal to decide.
The participation of a party in the selection and appointment
of an arbitrator and the filling of appropriate pleadings before the
arbitral tribunal to question its jurisdiction shall not be construed as a
submission to the jurisdiction of the arbitral tribunal or of a waiver of
his/her/its right to assert such grounds to challenge the jurisdiction of
48
the arbitral tribunal or the validity of the resulting award.
The respondent in the arbitration may invoke any such grounds
to question before the court the existence, validity, or enforceability of
the arbitration agreement, or the propriety of the arbitration, or the
jurisdiction of the arbitrator and invoke the pendency of such action as
ground for suspension of the arbitration proceeding. The arbitral tribunal,
having regard to the circumstances of the case, and the need for the early
and expeditious settlement of the dispute, in light of the facts and
arguments raised to question its jurisdiction, may decide either to suspend
the arbitration until the court has made a decision on the issue or continue
with arbitration.
If a dispute is, under an arbitration agreement, to be
submitted to arbitration, but before arbitration is commenced or while it is
pending, a party files an action before the court which embodies or includes
as a cause of action the dispute that is to be submitted to arbitration the
filling of such action shall not prevent the commencement of the arbitration
or the continuation of the arbitration until the award is issued. (Article
5.15., IRR, RA 9285)
Can an arbitral tribunal order interim measures?
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 this
Article. Such interim measures may include, but shall not be limited to
preliminary injunction directed against a party, appointment of receivers or
detention preservation, inspection of property that is the subject of the
dispute in arbitration. (Article 5.15, par. a, IRR, RA 9285)
When may a request for interim measure of protection be made?
After the constitution of the arbitral tribunal, and during
arbitral proceedings, a request for interim measures of protection, or
modification thereof, shall be made with the arbitral tribunal. 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 the request. (Article 5.15, par.b, IRR, RA 9285)
What are the Rules on interim or provisional Relief that must be observed?
The following rules on interim or provisional relief shall be observed:
Any party may request that the provisional or interim relief
be granted against the adverse party.
Such relief may be granted:
 To prevent irreparable loss or injury;
 To provide security for the performance of an obligation;
 To produce or preserve evidence; or
 To compel any other appropriate act or omissions.
The order granting provisional relief may be conditioned upon
the provision of security or any act or omission specified in the order.
Interim or provisional relief is requested by written
application transmitted by reasonable means to the arbitral tribunal and the
party against whom relief is sought, describing in appropriate detail the
precise relief, the party against whom the relief is requested, the ground
for the relief and the evidence supporting the request.
The order either granting or denying an application for
49
interim relief 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 fee paid in obtaining the order’s judicial
enforcement. (Article 5.16, par. c, IRR, RA 9285)
CONDUCT OF ARBITRAL PROCEEDINGS
On Equal Treatment of Parties
The parties shall be treated with equally and each party shall
be given a full opportunity of presenting his/her/its case. (Article 5.17.,
IRR, RA 9285)
On Determination of Rules of Procedure
Subjected to the provisions of these Rules, 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 provision of the ADR Act, conduct the arbitration in such manner as it
considers appropriate. The power conferred upon the arbitral tribunal
includes the power to determine admissibility, relevance, materially and
weight of evidence. (Article 5.18., IRR, RA 9285)
On Place of Arbitration
The parties are free to agree on the place of arbitration.
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.
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. (Article 5.19., IRR, RA
9285)
On Commencement of Arbitral Proceedings
Where there is a prior arbitration agreement between the
parties, arbitration is deemed commenced as follows:
In institutional arbitration is commenced in accordance with
the arbitration rules of the institution agreed upon by the parties.
In ad hoc arbitration, arbitration is commenced by the
claimant upon delivering to the respondent a demand for arbitration. A
demand may be in any form stating:
 the name, address and description of each of the parties;
 a description of the nature and circumstances of the dispute giving rise
to the claim;
 a statement of the relief sought, including the amount of the claim;
 the relevant agreements, if any, including the arbitration agreement, a
copy of which shall be attached; and
 appointment of arbitrators and / or demand to appoint.
If the arbitration agreement provides for the appointment of a
sole arbitrator, the demand shall include an invitation of the claimant to
the respondent to meet and agree upon such arbitrator, the place, time and
50
date stated therein which shall not be less than thirty (30) days from
receipt of the demand.
If the arbitration agreement provides for the establishment of
an arbitral tribunal of three (3) arbitrators, the demand shall name the
arbitrator appointed by the claimant. It shall include the curriculum vitae
of the arbitrator appointed by the claimant and the latter’s acceptance of
the appointment.
Where there is no prior arbitration agreement, arbitration may
be initiated by one party through a demand upon the other to submit their
dispute to arbitration. Arbitration shall be deemed commenced upon the
agreement by the other party to submit the dispute to arbitration.
The demand shall required the respondent to name his/her/its/
arbitrator within a period which shall not be less than fifteen (15) days
from receipt of the demand. This period may be extended by agreement of the
parties. Within said period, the respondent shall give a written notice to
the claimant of the appointment of the respondent’s arbitrator and attach to
the notice the arbitrator’s curriculum vitae and the latter’s acceptance of
the appointment. (Article 5.20., IRR, RA 9285)
On Language
The parties are free to agree on the language or languages to
be used in the arbitral proceedings. Failing such agreement, the language to
be used shall be English or Filipino. The language/s agreed, unless
otherwise specified therein, shall be in all hearings and all written
statements, orders or other communication by the parties and 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 in accordance with paragraph (a) of this Article.
(Article 5.21., IRR, RA 9285)
On Statement of Claim and Defense
Within the period of time agreed by the parties or determined
by the arbitral tribunal, the claimant shall state the facts supporting
his/her/its claim, the points at issue and the relief or remedy sought, and
the respondent shall state his/her defense in respect of these particulars,
unless the parties may have otherwise agreed as to the required elements of
such statements. 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.
Unless otherwise agreed by the parties, either party may amend or supplement
his/her/its claim or defense during the course of the arbitral proceedings,
unless the arbitral tribunal considers it inappropriate to allow such
amendments having regard to the delay in making it. (Article 5.22., IRR, RA
9285)
On Hearing and Written Proceedings
In ad hoc arbitration, the procedure determined by the
arbitrator, with the agreement of the parties, shall be followed. In
institutional arbitration, the applicable rules of procedure of the
arbitration institution shall be followed. In default of agreement of the
parties, the arbitration procedure shall be as provided in this Chapter 3,
Rule 4, IRR of RA 9285.
Within thirty (30) days from the appointment of the arbitrator
or the constitution of an arbitral tribunal, the arbitral tribunal shall
call the parties and their respective counsels to a pre-hearing conference
to discuss the following matters:
The venue or place/s where the arbitration proceeding may be
51
conducted in an office space, a business center, a function room or any
suitable place agreed upon by the parties and the arbitral tribunal, which
may vary per session/hearing/conference;
The manner of recording the proceedings;
 The periods for the communication of the statement of claims with or
without counterclaims, and answer to the counterclaim/s and the form and
contents of such pleadings.
 The definition of the issues submitted to the arbitral tribunal for
determination and the summary of the claims and counterclaims of the
parties;
 The manner by which evidence may be offered if an oral hearing is
required, the submission of sworn written statements in lieu of oral
testimony, the cross-examination and further examination of witnesses;
 The delivery of certain types of communications such as pleadings, terms
of reference, order granting interim relief, final award and the like
that, if made by electronic or similar means, shall require further
confirmation in the form of a hard copy or hard copies delivered
personally or by registered post.
 The issuance of subpoena or subpoena duces tecum by the arbitral
tribunal to compel the production of evidence if either party shall or
is likely to request it;
 The manner by which expert testimony will be received if a party will or
is likely to request the arbitral tribunal to appoint one or more
experts, and in such case, the period for the submission to the
arbitrator by the requesting party of the proposed terms of reference
for the expert, the fees to be paid, the manner of payment to the expert
and the deposit by the parties or the requesting party of such amount
necessary to cover all expenses associated with the referral of such
issues to the expert before the expert is appointed;
 The possibility of either party applying for an order granting interim
relief either with arbitral tribunal or with the court, and, in such
case, the nature of the relief to be applied for;
 The possibility of a site or ocular inspection, the purpose of such
inspection, and in such case, the date, place and time of the inspection
and the manner of conducting it, and the sharing and deposit of any
associated fees and expenses;
 The amount to be paid to the arbitral tribunal as fees and the
associated costs, charges and expenses of arbitration and the manner and
timing of such payments; and
 Such other relevant matters as the parties and the arbitral tribunal may
consider necessary to provide for a speedy and efficient arbitration of
the dispute.
To the extent possible, the arbitral tribunal and the parties
shall agree upon any such matters and in default of agreement, the arbitral
tribunal shall have the discretion and authority to make the decision,
although in making decision, regard shall be given to the views expressed by
both parties.
The arbitral tribunal shall, in consultation with the parties,
fix the date/s and the time of hearing, regard being given to the
desirability of conducting and concluding an arbitration without undue
delay.
The hearing set shall not be postponed except with the
conformity of the arbitrator and the parties and only for a good and
sufficient cause. The arbitral tribunal may deny a request to postpone or to
cancel a scheduled hearing on the ground that a party has requested or is
intending to request from the court or from the arbitrator an order granting
52
interim relief.
A
party
may,
during
the
proceedings,
represent
himself/herself/itself or through a representative, at such hearing.
The hearing may proceed in the absence of a party who fails to obtain an
adjournment thereof or who, despite due notice, fails to be present, by
himself/herself/itself or through a representative, at such hearing.
Only parties, their respective representatives, the witnesses
and the administrative staff of the arbitral tribunal shall have the right
to be present if the parties, upon being informed of the presence of such
person and the reason for his/her presence, interpose no objection thereto.
Issues raised during the arbitration proceeding relating to
(a) the jurisdiction of the arbitral tribunal over one or more of the claims
or counter claims, or (b) the arbitrability of a particular claim or counter
claim, shall be resolved by the arbitral tribunal as threshold issues, if
the parties so request, unless they are intertwined with factual issues that
they cannot be resolved ahead of the hearing on the merits of the dispute.
Each witness shall, before giving testimony, be required to
take an oath/ affirmation before the arbitral tribunal, to tell the whole
truth and nothing but the truth during the hearing.
The arbitral tribunal shall arrange for the transcription of
the recorded testimony of each witness and require each party to share the
cost of recording and transcription of the testimony of each witness.
Each party shall provide the other party with a copy of each statement or
document submitted to the arbitral tribunal and shall have an opportunity to
reply in writing to the other party's statements and proofs.
The arbitral tribunal may require the parties to produce such
other documents or provide such information as in its judgment would be
necessary for it to render a complete, fair and impartial award.
The arbitral tribunal shall receive as evidence all exhibits submitted by a
party properly marked and identified at the time of submission.
At the close of the hearing, the arbitral tribunal shall
specifically inquire of all parties whether they have further proof or
witnesses to present; upon receiving a negative reply, the arbitral tribunal
shall declare the hearing closed.
After a hearing is declared closed, no further motion or
manifestation or submission may be allowed except for post-hearing briefs
and reply briefs that the parties have agreed to submit within a fixed
period after the hearing is declared closed, or when the arbitral tribunal,
motu proprio or upon request of a party, allows the reopening of the
hearing.
Decisions on interlocutory matters shall be made by the sole
arbitrator or by the majority of the arbitral tribunal. The arbitral
tribunal may authorized its chairman to issue or release, on behalf of the
arbitral tribunal, its decision on interlocutory matters.
Except as provide in section 17 (d) of the ADR Act. No
arbitrator shall act as a mediator in a any proceeding in which he/she is
acting as arbitrator even if requested by the parties; and all negotiations.
Note:
Before assuming the duties of his/her office, an arbitrator must be sworn by
any officer authorized by law to administer an oath or be required to make
an affirmation to faithfully and fairly hear and examine the matters in
controversy and make a just award according to the best his/her ability and
understanding. A copy of the arbitrator's oath or affirmation shall be
furnished each party to the arbitration.
Either party may object to the commencement or continuation of
an arbitration proceeding unless the arbitrator takes an oath or affirmation
53
as required in this chapter. If the arbitrator shall refuse to take an oath
or affirmation as required by law and this rule, he/she shall be replaced.
The failure to object to the absence of an oath or affirmation shall be
deemed a waiver of such objection and the proceedings shall continue in due
course and may not later be used as a ground to invalidate the proceedings.
The arbitral tribunal shall have the power to administer oaths
to, or require affirmation from, all witnesses directing them to tell the
truth, the whole truth and nothing but the truth in any testimony, oral or
written, which they may give or offer in any arbitration hearing. The oath
or affirmation shall be required of every witness before his/her testimony,
oral or written, is heard or considered.
the arbitral tribunal shall have the power to required any person to attend
a hearing as a witness. It shall have the power to subpoena witnesses, to
testify and/or produce documents when the relevancy and materiality thereof
has been shown to the arbitral tribunal. The arbitral tribunal may also
require the exclusion of any witness during the testimony of any other
witness. Unless the parties otherwise agree, all the arbitrators in any
controversy must attend all the hearings and hear the evidence of the
parties. (Article 5.23., IRR, RA 9285)
When may the tribunal order interim measures of protection?
The Arbitral Tribunal may order interim measures of protection
to any party under the following circumstances:
 unless otherwise agreed by the parties, the arbitral tribunal may, at
the request of a party and in accordance with the this Article, 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 of the procedure, Such interim measures may include, but shall
not be limited, to preliminary injunction directed against a party,
appointment of receivers or detention of property that is the subject of
the dispute in arbitration or its preservation or inspection.
After the constitution of the arbitral tribunal, and during
the arbitration proceedings, a request for interim measures of protection,
or modification thereof, may be made with the arbitral tribunal. 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 the request.
The following rules on interim or provisional relief shall be observed:
Any party may request that provisional or interim relief be
granted against the adverse party.
Such relief may be granted:
To prevent irreparable loss or injury;
To provide security for the performance of an obligation;
To produce or preserve evidence; or
To compel any other appropriate act or omissions.
The order granting provisional relief may be conditioned upon the provision
of security or any act or omission specified in the order.
Interim provisional relief is requested by written application transmitted
by reasonable means to the arbitral tribunal and the party against whom
relief is sought, describing in appropriate detail of the precise relief,
the party against whom relief is requested the ground for the relief, and
the evidence supporting the request.
The order either granting or denying an application for interim relief 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.
54
A party who does not comply with the order shall be liable for all damages,
resulting from noncompliance, including all expenses, and reasonably
attorney’s fees, paid in obtaining the order’s judicial enforcement.
The arbitral tribunal shall be have the power at any time, before rendering
the award, without prejudice to the rights of any party to petition the
court to take measures to safeguard an/or conserve any matter which is the
subject of the dispute in arbitration. (Article 5.24., IRR, RA 9285)
What are the possible consequences when there is a default on either party?
Unless otherwise agreed by the parties, if, without showing sufficient
causes.
the claimant fails to communicate his/her/its statement of
claim in accordance with paragraph (a) of Article 5.22(Statement of Claim
and Defense), the arbitral tribunal shall terminate the proceedings;
]the respondent fails to communicate his/her/its statement of defense in
accordance with paragraph (a) of Article 5.22 (Statements of Claim and
Defense), 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 based
on the evidence before it. (Article 5.26., IRR, RA 9285)
May the arbitral tribunal appoint an expert witness?
Yes. An arbitral tribunal may appoint an expert witness under the following
circumstances:
Unless otherwise agreed by the parties, the arbitral tribunal,
may appoint one or more experts to report to it on specific issues to be
determined by the arbitral tribunal; or
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/her inspection.
unless otherwise agreed by the parties, if a party so request or if the
arbitral tribunal considers it necessary, the expert shall, after delivery
of his/her written or oral report, participate in a hearing where the
parties have the opportunity to put questions to him/her and to present
expert witnesses in order to testify on the points at issue.
upon agreement of the parties, the finding of the expert engaged by the
arbitral tribunal on the matter/s referred to him shall be binding upon the
parties and the arbitral tribunal. (Article 5.26., IRR, RA 9285)
May the Arbitral tribunal request assistance in taking evidence and other
matters? Yes. The arbitral tribunal may request the following from the
court:
The arbitral tribunal or a party, with the approval of the
arbitral tribunal may request from a court, assistance in taking evidence
such as the issuance of subpoena ad testificandum and subpoena duces tecum,
deposition taking, site or ocular inspection, and physical examination of
properties. The court may grant the request within its competence and
according to its rules on taking evidence.
The arbitral tribunal or a party to the dispute interested in enforcing an
order of the arbitral tribunal may request from a competent court,
assistance in enforcing orders of the arbitral tribunal, including but not
limited, to the following:
Interim or provision relief;
Protective orders with respect to confidentiality;
Orders of the arbitral tribunal pertaining to the subject matter of the
dispute that may affect third persons and/or their properties; and/or
Examination of debtors. (Article 5.27., IRR, RA 9285)
What are the rules applicable to the substance of dispute?
The arbitral tribunal shall decide the dispute in accordance
55
with such law as is chosen by the parties, In the absence of such agreement,
Philippine law shall apply.
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57
58
59
60
61
62
63
64
65
66
67
The arbitral tribunal may grant any remedy or relief which it deems just and
equitable and within the scope of the agreement of the parties, which shall
include, but not be limited to, the specific performance of a contract.
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. (Article 5.28., IRR, RA 9285)
Explain how the arbitral tribunal renders decision?
The arbitration 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 the chairman of the arbitral tribunal, if so
authorized by the parties or all members of the arbitral tribunal.
Unless otherwise agreed upon by the parties, the arbitral tribunal shall
render its written award within thirty (30) days after the closing of all
hearings and/or submission of the parties’ respective briefs or if the oral
hearings shall have been waived, within thirty(30) days after the arbitral
tribunal shall have declared such proceedings in lieu of hearing closed.
This period may be further extended by mutual consent of the parties.
(Article 5.29., IRR, RA 9285)
What is the consequence if during the arbitral proceedings, the parties
settle the dispute?
If, during arbitral proceedings, the parties settle the
dispute, the arbitral tribunal, record the settlement in the form of an
arbitral award on agreed terms, consent award or award based on compromise.
An award as rendered above shall be made in accordance with the provisions
of Article 5.31 (Form and Contents of Award) 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. (Article 5.30., IRR, RA 9285)
Cite the required form and contents of award.
The award shall be made in writing and shall be signed by the
arbitral tribunal. In arbitration 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 us stated.
The award shall state the reasons upon which is based, unless the parties
have agreed that no reasons are to be given or the award on agreed terms,
consent award based on compromise under Article 5.30 (Settlement).
The award shall state its date and the placed of arbitration as determined
in accordance with the paragraph (a) of Article 5.19 (Place of Arbitration).
The award shall be deemed to have made at that place.
After the award is made, a copy signed by the arbitrators in accordance with
the paragraph (a) of this Article shall be delivered to each party.
The award of the arbitral tribunal need not be acknowledged, sworn to under
oath, or affirmed by the arbitral tribunal unless so required on writing by
the parties. If despite such requirement, the arbitral tribunal shall fail
to do as required, the parties may, within thirty days from the receipt of
said award, request the arbitral tribunal to supply the omission. The
failure of the parties to make an objection or make such request within the
said period shall be deemed a waiver or such requirement and may no longer
be raised as a ground to invalidate the award. (Article 5.31., IRR, RA 9285)
How is the Arbitral proceedings terminated?
The arbitration proceedings are terminated by the final award or by an order
of the arbitral tribunal in accordance with paragraph (b) of this Article5.
32, Chapter 3, IRR of RA 9285. (Article 5.32, par. b, IRR, RA 9285)
When should the Arbitral issue an order of termination?
The arbitral tribunal shall issue an order for the termination of the
arbitration proceedings when:
The claimant withdraws his claim, unless the respondents objects thereto for
68
the purpose of prosecuting his counterclaims in the same proceedings of the
arbitral tribunal recognizes a legitimate interest on his part in obtaining
a final settlement of the dispute; or
The parties agree on the termination of the proceedings; or
The arbitral tribunal finds that the continuation of the proceedings has for
any other reason before unnecessary or impossible; or
The required deposits are not paid in full in accordance with paragraph (d)
of Article 5.46 (Fees and Costs). (Article 5.32, par. b, IRR, RA 9285)
When does the mandate of arbitral tribunal end? Article 5.32. Termination of
Proceedings.
The arbitration proceedings are terminated by the final award
or by an order of the arbitral tribunal in accordance with paragraph (b) of
this Article.
The arbitral tribunal shall issue an order for the termination of the
arbitration proceedings when:
The claimant withdraws his claim, unless the respondents objects thereto for
the purpose of prosecuting his counterclaims in the same proceedings of the
arbitral tribunal recognizes a legitimate interest on his part in obtaining
a final settlement of the dispute; or
The parties agree on the termination of the proceedings; or
The arbitral tribunal finds that the continuation of the proceedings has for
any other reason before unnecessary or impossible; or
The required deposits are not paid in full in accordance with paragraph (d)
of Article 5.46 (Fees and Costs).
The mandate of the arbitral tribunal ends with the termination of the
arbitration proceedings, subject to the provisions of Article 5.33
(Correction and Interpretation of Award) and Article 5.34 (Application for
Settings Aside in Exclusive Recourse Against the Arbitral Award).
Except as otherwise provided in the arbitration agreement, no motion for
reconsideration correction and interpretation of award or additional award
shall be with the arbitral tribunal. The arbitral tribunal, by releasing its
final award, loses jurisdiction over the dispute and the parties to the
arbitral tribunal, by releasing its final award, loses jurisdiction over the
dispute and the parties to the arbitration. However, where is shown that the
arbitral tribunal failed to resolved an issue. Submitted to him or
determination a verified motion to complete a final award may be made within
thirty(30) days from its receipt.
Notwithstanding the foregoing, the arbitral tribunal may for special reason,
reserved in the final award in order a hearing to quantity costs and
determine which party shall bear the costs or apportionment thereof as may
be determined to be a equitable. Pending determination of this issue, the
award shall not be deemed final for purposes of appeal, vacations,
correction, or any post-award proceedings.
Article 5.33. Correction and Interpretation of Award, Additional Award.
Within thirty (30) days from receipt of the award, unless another period of
time has been agreed upon by the parties.
A party may, with notice to the other party, the arbitral tribunal to
correct in the awards any errors in computation, any clerical or
typographical errors or any errors similar nature
If so agreed by the parties, 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 connection or give the interpretation within thirty (30) days from
receipt of the request. The interpretation shall form part of the award.
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The arbitral tribunal may correct any errors of the type
referred to in paragraph (a) of this Article on its own initiative within
thirty
(30)
days
of
the
date
of
the
award.
70
Unless otherwise agreed by the parties, a party may, with
notice to the other party, may request within thirty (30) 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 (60) days.
The arbitral tribunal may extend, if necessary, the period of
time within which it shall make a correction, interpretation or an
additional award under paragraphs (a) and (c) of this Article.
The provisions of Article 5.31 (Form and Contents of Award) shall apply to a
correction or interpretation of the award to an additional award.
What must the court do upon application for setting aside an award?
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 an
award. (Article 5.34., IRR, RA 9285)
What are the grounds to vacate an Arbitral award?
The arbitral award may be questioned, vacated or set aside by
the appropriate court in accordance with the Special ADR Rules only on the
following grounds:
a. The arbitral award was procured by corruption, fraud or other undue
means; or
b. There was evident partially or corruption in the arbitral tribunal or
any of its members; or
c. The arbitral tribunal was guilty of misconduct or any form of
misbehavior that has materially prejudiced the rights of any party such
as refusing to postpone the hearing upon sufficient cause shown or to
hear evidence pertinent and material to the controversy; or
d. One or more of the arbitrators was disqualified to act as such under
this
Chapter
and
willfully
refrained
from
disclosing
such
disqualification ; or
e. The arbitral tribunal exceeded its powers, or so imperfectly executed
them, such that a complete, final and definite award upon the subject
matter submitted to it was not made.
Any other ground raised to question, vacate or set aside the
arbitral award shall be disregarded by the court. (Article 5.35, par. a.,
IRR, RA 9285)
What may the parties do when a petition to award or set aside an award is
filed?
Where a petition to vacate or set aside an award is filed, the
petitioner may simultaneously, or the oppositor may in the alternative,
petition the court to remit the case to the same arbitral tribunal for the
purpose of making a new or revised final and definite award or to direct a
new hearing before the same or new arbitral tribunal, the members of which
shall be chosen in the manner originally provided in the arbitration
agreement or submission. In the latter case, any provision limiting the
time. In which the arbitral tribunal may make a decision shall be deemed
applicable to the new arbitral tribunal and to commence from the date of the
court’s order. (Article 5.35, par. b, IRR, RA 9285)
Where a party files a petition with the court to vacate or set aside an
award by reason of omission/s that do not affect the merits of the case and
may be cured or remedied, what may the adverse party do?
71
Where a party files a petition with the court to vacate or set
aside an award by reason of omission/s that do not affect the merits of the
case and may be cured or remedied, the adverse party may oppose that
petition and instead request the court to suspend the vacation or setting
aside the proceedings for a period of time to give the arbitral tribunal an
opportunity to cure or remedy the award or resume the arbitration
proceedings or take such other action as will eliminate the grounds for
vacation or setting aside. (Article 5.35, par. c, IRR, RA 9285)
RECOGNITION AND ENFORCEMENT OF AWARDS
What must the party moving for an order confirming, modifying, correcting,
or vacating an award do? (Article 5.1., IRR, RA 9285)
When may the court enter its judgment? (Article 5.1., IRR, RA 9285)
When may a decision of the Court confirming, vacating, setting aside,
modifying or correcting an arbitral award be appealed to? (Article 5.1.,
IRR, RA 9285)
What is the nature of the proceedings for the following?
 Recognition and enforcement of an arbitration agreement or
 Vacation or setting aside of an arbitral award, and
 Any application with a court for arbitration assistance and supervision,
except appeal.
 Proceedings for recognition and enforcement of an arbitration agreement
or for vacation or setting aside an arbitral award, and any application
with a court for arbitration assistance and supervision, except appeal
shall be deemed as special proceedings. (Article 5.39., IRR, RA 9285)
Where is the venue of the said proceedings?
The same shall be filed with the Court;
 where the 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 its place of
business; or
 in the National Capital Judicial Region at the option of the applicant.
(Article 5.39., IRR, RA 9285)
Is notice to parties required in a special proceedings for recognition and
enforcement of an Arbitral award? (Article 5.1., IRR, RA 9285)
In domestic Arbitration, is a party entitled to legal representation?
In domestic arbitration conducted in the Philippines, a party
may be represented by any person of his/her/its 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 such appearance is in relation to the
arbitration in which he/she appears.
No arbitrator shall act as mediator in any proceeding in which
he/she is acting as arbitrator and all negotiations towards settlement of
the dispute must take without the presence of the arbitrators. (Article
5.41., IRR, RA 9285)
Is the Arbitration proceedings privileged?
Yes. The arbitration proceedings, including the records,
evidence and the arbitral award and other confidential information, shall be
considered privileged and confidential and shall not be published except –
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with consent of the parties; or for the limited purpose of disclosing to the
court 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. (Article 5.42., IRR, RA 9285)
What is the consequence of the death of the party?
Where a party dies after making a submission or a contact to
arbitrate as prescribed in Rules on Recognition and Enforcement of Awards,
the proceeding may be begun or continued upon the application of, or notice
to, his/her executor or administrator, or to temporary administrator of
his/her estate. In any such case, the court may issue an order extending the
time within which notice of a motion to recognize or vacate an award must be
served. Upon recognizing an award, where a party has died since it was filed
or delivered, the court must enter judgment in the name of the original
party; and the proceedings thereupon are the same as where a party dies
after a verdict. (Article 5.43., IRR, RA 9285)
What are the rules in multi-party arbitration?(Article 5.1., IRR, RA 9285)
May the parties agree on consolidation of proceedings and holding of
concurrent hearings? (Article 5.1., IRR, RA 9285)
What are the rules in fees and costs? (Article 5.1., IRR, RA 9285)
CHAPTER VIII: ARBITRATION LAW (REPUBLIC ACT NO. 876)
What is Republic Act No. 876?
This Act shall be known as "The Arbitration Law."
What are the subject matters of Arbitration law?
Two or more persons or parties may submit to the arbitration
of one or more arbitrators any controversy existing between them at the time
of the submission and which may be the subject of an action, or the parties
to any contract may in such contract agree to settle by arbitration a
controversy thereafter arising between them. Such submission or contract
shall be valid, enforceable and irrevocable, save upon such grounds as exist
at law for the revocation of any contract.
Such submission or contract may include question arising out
of valuations, appraisals or other controversies which may be collateral,
incidental, precedent or subsequent to any issue between the parties. (Sec.
2, RA 876)
Who are disqualified to arbitrate?
A controversy cannot be arbitrated where one of the parties to
the controversy is an infant, or a person judicially declared to be
incompetent, unless the appropriate court having jurisdiction approve a
petition for permission to submit such controversy to arbitration made by
the general guardian or guardian ad litem of the infant or of the
incompetent.
But where a person capable of entering into a submission or
contract has knowingly entered into the same with a person incapable of so
doing, the objection on the ground of incapacity can be taken only in behalf
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of the person so incapacitated. (Sec. 2, RA 876)
What are the controversies or cases not subject to RA No. 876?
This Act shall not apply to controversies and to cases which
are subject to the jurisdiction of the Court of Industrial Relations or
which have been submitted to it as provided by Commonwealth Act Numbered One
hundred and three, as amended. (Sec. 2, RA 876)
What is the form of the Arbitration Agreement?
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.
The making of a contract or submission for arbitration
described in section two hereof, providing for arbitration of any
controversy, shall be deemed a consent of the parties to the jurisdiction of
the Court of First Instance of the province or city where any of the parties
resides, to enforce such contract or submission. (Sec. 4, RA 876)
Discuss the Preliminary Procedure of Arbitration.
An Arbitration shall be instituted by:
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. Such demand shall be set forth 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. The
demand shall be served upon any party either in person or by registered
mail. 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. If the
contract between the parties provides for the appointment of three
arbitrators, one to be selected by each party, the demand shall 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.
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. Such demand shall set forth the nature of the
controversy, the amount involved, if any, and the relief sought, and shall
be accompanied by a true copy of the contract providing for arbitration.
In the case of the submission of an existing controversy 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.
In the event that one party neglects, fails or refuses to arbitrate under a
submission agreement, the aggrieved party shall follow the procedure
prescribed in subparagraphs (a) and (b) of Section 5 of RA 876. (Sec. 5, RA
876)
How is the hearing by court in Arbitration conducted?
A party aggrieved by the failure, neglect or refusal of
74
another to perform under an agreement in writing providing for arbitration
may petition the court for an order directing that such arbitration proceed
in the manner provided for in such agreement. 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. The court shall hear the parties,
and upon being satisfied that the making of the agreement or such failure to
comply therewith is not in issue, shall make an order directing the parties
to proceed to arbitration in accordance with the terms of the agreement. If
the making of the agreement or default be in issue the court shall proceed
to summarily hear such issue. 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.
The court shall decide all motions, petitions or applications
filed under the provisions of this Act, within ten days after such motions,
petitions, or applications have been heard by it. (Sec. 7, RA 876)
When may a civil action be stayed?
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. (Sec. 7, RA 876)
How are Arbitrators appointed?
If, in the contract for arbitration or in the submission
described in section two (2) of RA 876, 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:
 If the parties to the contract or submission are unable to agree upon a
single arbitrator; or
 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
 If either party to the contract fails or refuses to name his arbitrator
within fifteen days after receipt of the demand for arbitration; or
 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.
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.
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
75
appointments. (Sec. 8, RA 876)
What are the qualifications of an Arbitrator?(Sec. 2, RA 876)
May additional Arbitrators be appointed?
Yes, Sec. 9 provides: “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.” (Sec.
9, RA 876)
What must the Arbitrator do if, after appointment but before or during
hearing, a person appointed to service as an arbitrator shall discover any
circumstance likely to create a presumption of bias, or which he believes
might disqualify him as an impartial Arbitrator?
If, after appointment but before or during hearing, a person
appointed to serve as an arbitrator shall discover 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:
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. (Sec. 10, RA
876)
When the Arbitrators are challenged
The arbitrators may be challenged only for the reasons
mentioned in the 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. 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. (Sec. 11, RA 876)
What is the procedure to be followed by the Arbitrator?
Subject to the terms of the submission or contract, if any are
specified therein, are arbitrators selected as prescribed herein must,
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, 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. 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.
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
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parties have continued with the arbitration without objection to such
adjournment. 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. 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.
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. 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.
The arbitrators shall arrange for the taking of a stenographic
record of the testimony when such a record is requested by one or more
parties, and when payment of the cost thereof is assumed by such party or
parties.
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. (Sec. 12, RA 876)
Are Arbitrators required to take an oath?
Yes. Before hearing any testimony, arbitrators must be sworn,
by any officer authorized by law to administer an oath, faithfully and
fairly to hear and examine the matters in controversy and to make a just
award according to the best of their ability and understanding. Arbitrators
shall have the power to administer the oaths to all witnesses requiring them
to tell the whole truth and nothing but the truth in any testimony which
they may give in any arbitration hearing. This oath shall be required of
every witness before any of his testimony is heard. (Sec. 13, RA 876)
Do Arbitrators have the power to issue subpoena duces tecum and ad
testificandum?
Yes. Arbitrators shall have the power to require any person to
attend a hearing as a witness. They shall have the power to subpoena
witnesses and documents when the relevancy of the testimony and the
materiality thereof has been demonstrated to the arbitrators. Arbitrators
may also require the retirement of any witness during the testimony of any
other witness. 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. (Sec. 14, RA 876)
Do Arbitrators have the power to take measures to safeguard and/or conserve
any matter subject of the dispute in Arbitration?
Yes. The arbitrator or arbitrators shall have the power at any
time, before rendering the award, without prejudice to the rights of any
party to petition the court to take measures to safeguard and/or conserve
any matter which is the subject of the dispute in arbitration. (Sec. 14, RA
876)
How is the hearing of Arbitration conducted?
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
77
require or deem necessary to an understanding and determination of the
dispute. 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. 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. 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. (Sec. 15, RA
876)
When may the parties’ briefs be filed?
At the close of the hearings, the arbitrators shall
specifically inquire of all parties whether they have any further proof or
witnesses to present; upon the receipt of a negative reply from all parties,
the arbitrators shall declare the hearing closed unless the parties have
signified an intention to file briefs. Then the hearing shall be closed by
the arbitrations after the receipt of briefs and/or reply briefs. Definite
time limit for the filing of such briefs must be fixed by the arbitrators at
the close of the hearing. Briefs may filed by the parties within fifteen
days after the close of the oral hearings; the reply briefs, if any, shall
be filed within five days following such fifteen-day period. (Sec. 16, RA
876)
May a hearing be re-opened?
Yes. The hearing may be reopened by the arbitrators on their
own motion or upon the request of any party, upon good cause, shown at any
time before the award is rendered. When hearings are thus reopened the
effective date for the closing of the hearings shall be the date of the
closing of the reopened hearing. (Sec. 17, RA 876)
May parties submit their dispute to Arbitrator other than by oral hearing?
Yes. The parties to a submission or contract to arbitrate may,
by written agreement, submit their dispute to arbitration by other than oral
hearing. The parties may submit an agreed statement of facts. They may also
submit their respective contentions to the duly appointed arbitrators in
writing; this shall include a statement of facts, together with all
documentary proof. Parties may also submit a written argument. Each party
shall provide all other parties to the dispute with a copy of all statements
and documents submitted to the arbitrators. Each party shall have an
opportunity to reply in writing to any other party's statements and proofs;
but if such party fails to do so within seven days after receipt of such
statements and proofs, he shall be deemed to have waived his right to reply.
Upon the delivery to the arbitrators of all statements and documents,
together with any reply statements, the arbitrators shall declare the
proceedings in lieu of hearing closed. (Sec. 18, RA 876)
When is the proper time to render 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. (Sec. 19, RA 876)
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What must be the form and contents of the award?
The award must be made in writing and signed and acknowledged
by a majority of the arbitrators, if more than one; and by the sole
arbitrator, if there is only one. Each party shall be furnished with a copy
of the award. The arbitrators in their award may grant any remedy or relief
which they deem just and equitable and within the scope of the agreement of
the parties, which shall include, but not be limited to, the specific
performance of a contract.
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. No arbitrator shall act as a mediator in any
proceeding in which he is acting as arbitrator; and all negotiations towards
settlement of the dispute must take place without the presence of the
arbitrators.
The arbitrators shall have the power to decide only those
matters which have been submitted to them. The terms of the award shall be
confined to such disputes.
The arbitrators shall have the power to assess in their award
the expenses of any party against another party, when such assessment shall
be deemed necessary. (Sec. 20, RA 876)
Is Arbitration a special proceeding?
Yes. (Arbitration under a contract or submission shall be
deemed a special proceeding, of which the court specified in the contract or
submission, or if none be specified, the Court of First Instance for the
province or city in which one of the parties resides or is doing business,
or in which the arbitration was held, shall have jurisdiction. Any
application to the court, or a judge thereof, hereunder shall be made in
manner provided for the making and hearing of motions, except as otherwise
herein expressly provided. (Sec. 22, RA 876)
When may the order of confirmation of award be made?
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 twenty-eight, for an order confirming
the award; and thereupon the court must grant such order unless the award is
vacated, modified or corrected, as prescribed herein. Notice of such motion
must be served upon the adverse party or his attorney as prescribed by law
for the service of such notice upon an attorney in action in the same court.
(Sec. 23, RA 876)
What are the grounds to vacate an award?
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) The award was procured by corruption, fraud, or other undue means; or
b) That there was evident partiality or corruption in the arbitrators or
any of them; or
c) 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;
d) 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; or
e) That the arbitrators exceeded their powers, or so imperfectly executed
79
them, that a mutual, final and definite award upon the subject matter
submitted to them was not made.
Where an award is vacated, the court, in its discretion, may
direct a new hearing either before the same arbitrators or before a new
arbitrator or arbitrators to be chosen in the manner provided in the
submission or contract for the selection of the original arbitrator or
arbitrators, and any provision limiting the time in which the arbitrators
may make a decision shall be deemed applicable to the new arbitration and to
commence from the date of the court's order.
Where the court vacates an award, costs, not exceeding fifty pesos and
disbursements may be awarded to the prevailing party and the payment thereof
may be enforced in like manner as the payment of costs upon the motion in an
action. (Sec. 24, RA 876)
What are the grounds to modify or correct an award?
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) 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
b) Where the arbitrators have awarded upon a matter not submitted to them,
not affecting the merits of the decision upon the matter submitted; or
c) 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.
The order may modify and correct the award so as to effect the
intent thereof and promote justice between the parties. (Sec. 25, RA 876)
When should a notice of a motion to vacate, modify or correct the award be
served?
Notice of a motion to vacate, modify or correct the award must
be served upon the adverse party or his counsel within thirty days after
award is filed or delivered, as prescribed by law for the service upon an
attorney in an action. (Sec. 26, RA 876)
When may the judgment be made?
Upon the granting of an order confirming, modifying or
correcting an award, judgment may be entered in conformity therewith in the
court wherein said application was filed. Costs of the application and the
proceedings subsequent thereto may be awarded by the court in its
discretion. If awarded, the amount thereof must be included in the judgment.
(Sec. 27, RA 876)
What are the papers that must accompany the motion to confirm, modify,
correct or vacate the award?
The party moving for an order 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;
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.
A verified of the award.
Each notice, affidavit, or other paper used upon the
application to confirm, modify, correct or vacate such award, and a copy of
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each of the court upon such application.
The judgment shall be docketed as if it were rendered in an
action.
The judgment so entered shall have the same force and effect
in all respects, as, and be subject to all the provisions relating to, a
judgment in an action; and it may be enforced as if it had been rendered in
the court in which it is entered. (Sec. 28, RA 876)
When may an appeal be taken?
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. The
proceedings upon such an appeal, including the judgment thereon shall be
governed by the Rules of Court in so far as they are applicable. (Sec. 29,
RA 876)
What is the consequence if a party if a party dies after making a submission
or a contract to arbitrate?
Where a party dies after making a submission or a contract to
arbitrate as prescribed in this Act, the proceedings may be begun or
continued upon the application of, or notice to, his executor or
administrator, or temporary administrator of his estate. In any such case,
the court may issue an order extending the time within which notice of a
motion to confirm, vacate, modify or correct an award must be served. Upon
confirming an award, where a party has died since it was filed or delivered,
the court must enter judgment in the name of the original party; and the
proceedings thereupon are the same as where a party dies after a verdict.
(Sec. 30, RA 876)
What is the consequence if a party if a party dies after making a submission
or a contract to arbitrate?
Where a party dies after making a submission or a contract to
arbitrate as prescribed in this Act, the proceedings may be begun or
continued upon the application of, or notice to, his executor or
administrator, or temporary administrator of his estate. In any such case,
the court may issue an order extending the time within which notice of a
motion to confirm, vacate, modify or correct an award must be served. Upon
confirming an award, where a party has died since it was filed or delivered,
the court must enter judgment in the name of the original party; and the
proceedings thereupon are the same as where a party dies after a verdict.
(Sec. 30, RA 876)
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Chapter 2 KATARUNGANG PAMBARANGAY LAW
(Sections 399 – 422 of the Local Government Code) &
Restorative Justice
Chapter 2.1: Katarungang Pambarangay Law
Introduction
To give teeth to the Barangay Captains, Presidential Decree
299 which was made into law in September 1973 gave them ample authority and
power to adequately discharge their peace – making responsibilities and to
act as auxiliaries of the law. They were considered persons in authority,
while the other barangay leaders were deemed agents of persons in authority.
In effect, the barangays through the respective Barangay Captains and other
barangay leaders are involved in law enforcement tasks and also in other
aspects of the criminal justice system.
On August 5, 1974, Presidential Decree 528 was enacted and it
laid the groundwork for the decentralization of the government’s program for
the prevention and control of crime and delinquency on the community level
through the active involvement of the barangays and their members. Its
rationale was the fact that crime and delinquency, being problems of the
community, must be solved by the community on the local level with adequate
guidance from the proper authorities.
In 1978, Presidential Decree 1508, known as the Katarungang
Pambarangay Law, was enacted and it provided a procedure on amicably
settling disputes in the barangay level. It also defined the duties and
responsibilities of barangay officials in dispute settlement, the rules in
determining venue, the subject matter of settlement, among others.
It became a policy of the State in the 1987 Philippine
Constitution to ensure the autonomy of local governments including the
barangay. (Sec 25, Art 2 of the Philippine Constitution) To ensure the
compliance of said policy of the State, the Congress was directed to enact a
local government code which shall provide for a more responsive and
accountable local government structure instituted through a system of
decentralization with effective mechanisms of recall, initiative, and
referendum; allocate among the local government units their powers,
responsibilities and resources; and provide for the qualifications,
election, appointment, and removal, term, salary, powers, and functions and
duties of local officials, and all other matters relating to the
organization and operation of local units. (Sec 3, Art 10 of the Philippine
Constitution)
As a response of the Congress to comply with what was mandated
by the Constitution, it enacted Republic Act 7160 which was approved on
October 10, 1991 and took effect on January 1, 1992. Republic Act 7160 is
the Local Government Code of the Philippines where sections 399 – 422 of it
deal with Katarungang Pambarangay. In other words, some provisions of
Presidential Decrees 299, 528, and 1508 were amended by Sections 399 – 422
of the Local Government Code. The Katarungang Pambarangay exists only in the
Philippines and it features how Filipinos resolve disputes without
undergoing the Criminal Justice System. The said portion of the Local
Government Code also shows how a Barangay Chairman has a legislative,
executive and judiciary powers at the same time. He has a legislative power
by chairing the Barangay Council, he has an executive power by executing or
enforcing the ordinance passed by the council, and he has a judicial power
by chairing the Lupong Tagapamayapa.
The katarungang Pambarangay which is also known as Barangay
82
Justice System or Village Justice, would somehow help out the party
litigants from trouble in going in the court of law and at the same time
help the court of law to ease out the delicate task in attending to minor
offenses punishable by imprisonment not exceeding one year or a fine not
exceeding five thousand pesos. Said offenses must be resolved by the
community through its barangay chairman or lupon with adequate guidance from
the proper authorities, not strictly adhering to technical procedural
processes, but without sacrificing justice. (Class discussion of Dizon, 2005
& Tradio, 1996)
What is PD 1508?
This refers to an Act Establishing a System of Amicably
Settling Disputes at the Barangay Level.
What is RA 7160?
RA 7160 is otherwise known as the 1991 Local Government Code.
This gives barangays the mandate to enforce peace and order and provide
support for the effective enforcement of human rights and justice.
Decentralization has facilitated the recognition of the Katarungang
Pambarangay or Barangay Justice System as an alternative venue for the
resolution of disputes. The challenge facing local governments now is to
maximize and harness the katarungang pambarangay as one of the most valuable
mechanisms available in administering justice, advancing human rights
protection and resolving and/or mediating conflict at the barangay level
through non-adversarial means.
In addition, this law expanded the scope and powers of the
Katarungang Pambarangay or the Barangay Justice System designed not merely
to decongest the courts of cases but to address inequalities in access to
justice, particularly experienced by marginalized communities. The
barangays, being the basic political unit in the country, is in the most
strategic position to facilitate resolution or mediation of community and
family disputes, alongside its mandate to deliver basic services.
What is Katarungang Pambarangay?
Katarungang Barangay (KP) is a system of justice administered
at the barangay level for the purpose of amicable settling disputes through
mediation, conciliation or abitration among the family or barangay without
resorting to the courts. The Katarungang Pambarangay or Barangay Justice
System is a community-based dispute settlement mechanism that is
administered by the basic political unit of the country, the barangay. As a
community based mechanism for dispute resolution, it covers disputes between
members of the same community (generally, same city/municipality) and
involves the Punong Barangay and other members of the communities (the Lupon
members) as intermediaries (mediators, conciliators, and, sometimes,
arbitrators).
Take Note: Under the Barangay Justice System, the main strategy for settling
disputes is to provide a venue for the disputing parties to search for a
solution that is mutually acceptable. Hence, the primary role of the system
is not to decide disputes and impose a solution on the parties but to assist
the parties in discussing the possible amicable settlement of their
disputes.
The Punong Barangay and the community conciliators (Lupon
members) do not act as judges or adjudicators of disputes but as
facilitators for the disputing parties’ discussion of possible solutions.
For this reason, the personal appearance and participation of the disputing
83
parties is necessary, while the non-appearance of the parties will have
corresponding sanctions. Also because of the need for the disputing parties’
personal participation in the conciliation proceedings, disputes involving
non-natural persons like corporations are not subject to the conciliation
proceedings of the Barangay Justice System.
What is barangay? What is its role?
Barangay defined:
The barangay, as the basic political unit, serves as the
primary planning and implementing unit of government policies, plans,
programs, projects, and activities in the community, and as a forum wherein
the collective views of the people may be expressed, crystallized, and
considered, and where disputes may be amicably settled. (Sec 384 of the
Local Government Code)
The Barangay Chief Officials and Offices are the following:
There shall be in each barangay a Punong Barangay, seven (7)
Sangguniang Barangay Members, a Sangguniang Kabataan Chairman, a Barangay
Secretary, and a Barangay Treasurer.
There shall also be in every barangay a Lupong Tagapamayapa.
The Sangguniang Barangay may form community brigades and create such other
positions and offices as may be deemed necessary to carry out the purposes
of the barangay government in accordance with the needs of public service
subject to the budgetary limitations and to other provisions of laws. (Art
387 of the Local Government Code)
The Punong Barangay, the seven (7) Sangguniang Barangay
Members, the Sangguniang Kabataan Chairman, the Barangay Secretary, the
Barangay Treasurer, and the members of Lupong Tagapamayapa in each barangay
shall be deemed persons in authority in their jurisdiction, while the other
barangay officials and members who may be designated by law or ordinance in
charged with the maintenance of public order, protection and security of
life and property, or maintenance of desirable and balance environment, and
any barangay member who comes to the aid of persons in authority, shall be
deemed agents of persons in authority. (Art 388 of the Local Government
Code)
Take Note: For purposes of this discussion, the terms Barangay Chairman,
Barangay Captain, Lupon Chairman, and Punong Barangay refer to the same
person.
The manner of electing or appointing officials of Barangay.
The Barangay officials shall be elected or appointed in the following
manner:
a) The Barangay Chairman shall be elected in an election called for that
purpose; and
b) Under the Philippine Constitution, the term of office of elective local
officials, except barangay officials, which shall be determined by law,
shall be three years and no such official shall serve for more than
three consecutive terms. (Sec 8, Art X of the Philippine Constitution)
The Barangay Secretary and Barangay Treasurer shall be
appointed by the Punong Barangay with concurrence of the majority of all the
Sangguniang Barangay Members. Their appointment shall not be subject to
attestation by the Civil Service Commission; (Sec 394 & 395 of the Local
Government Code)
84
Who is the Barangay Secretary of the lupon? What are his duties?
The Barangay Secretary shall concurrently serve as the secretary of the
Lupon. His duties are the following:
a. He shall record the results of the mediation proceedings before the
Punong Barangay and shall submit a report thereon to the proper city or
municipal courts;
b. He shall receive and keep the records of proceedings submitted to him by
various conciliation panels; and
c. He shall issue certified true copies of any public record in his custody
that is not by law otherwise declared confidential. (Sec 394 of the
Local Government Code)
Take Note: The word “concurrently” means at the same time. (Aquino, 2005)
What is Lupong
Tagapamayapa?
Lupong Tagapamayapa
(Lupon) is a body organized in every
barangay composed of Punong Barangay as the chairperson and not less than
ten (10) and more than twenty from which the members of every Pangkat shall
be chosen.
Who has the authority to constitute the Lupon?
The Punong Barangay
can appoint the lupon members. It is
his/her exclusive prerogative — no need for approval, confirmation
orratification of the sangguniang barangay.
What are the six (6) steps to
STEP
STEP
STEP
STEP
STEP
STEP
1:
2:
3:
4:
5:
6:
Determining
Preparing a
Posting the
Appointment
Oath taking
Posting
constitute a Lupon?
the actual number of Lupon Members;
notice to constitute the Lupon;
notice to constitute the Lupon;
of
Lupon Members;
of Lupon
members;
When and how the Punong Barangay constitute the Lupon?
A notice to constitute the Lupon, which shall include the
names of the proposed
members who have expressed their willingness to
serve, shall be prepared by the Barangay Chairman within the first fifteen
(15) days from the start of his term of office.
How many members should
A minimum of ten (10)
the Punong Barangay include in the list?
and maximum of twenty (20) members.
Who are qualified and disqualified members of Lupon?
The lupong tagapamayapa shall be composed of Punong Barangay
as chairman and ten (10) to twenty (20) members.
The
a.
b.
c.
qualifications of the members are the following:
Actually residing or working in the barangay;
Not expressly disqualified by law; and
Possessing integrity, impartiality, independence of mind, sense of
fairness, and reputation for probity. (Sec 399 of the Local Government
Code)
85
Below are the Qualified and Disqualified to be Lupon Members:
86
After identifying the 10-20 members of the Lupon, what are the next steps?
The Barangay Secretary, who is also the concurrent secretary
of Lupon, shall prepare a notice to constitute the Lupon using KP form 1.
Take Note: Such notice shall be posted in three (3) conspicuous places in
the barangay. Said notice shall contain an invitation to all barangay
members to endorse or oppose the proposed
appointment of any person/s
included in the list. The recommendation shall be made
within the period of posting for three weeks.
87
Figure 2: KP FORM NO.
1
Take Note: Within ten (10) days from completion of the posting
requirement, the Chairman shall appoint those he determines to be the
members of the Lupon using KP form 2. He must, however, take into
consideration any opposition to the proposed appointment.
Be noted further that the appointments shall be in writing, signed
by the Barangay Chairman, and attested by the Barangay Secretary. The
members of the Lupon shall serve for three (3)
Local Government Code)
Figure 3: KP FORM NO.
2
Take Note: The Newly Appointed Lupon Members shall take their Oath
immediately Before the Punong Barangay using KP Form 5.
88
years. (
Figure 4: KP FORM NO. 5
Be noted further that the List of
appointed Lupon Members shall be posted in
three strategic
and highly visible places in the
Barangay.
The term of office of Lupon
filling up vacancies:
members and the manner of
The Lupon members shall hold
office until a new lupon is constituted on
the third year
following his appointment unless sooner terminated by
resignation, transfer of residence, or place of work, or withdrawal
of
appointment by the Punong Barangay with
concurrence of the majority of all
the members of the Lupon.Should vacancy occur in the Lupon for any cause, the
Punong Barangay shall immediately appoint a qualified
person who shall
hold office only for the unexpired portion of the term of the predecessor. (Sec
401 of the Local Government Code)
Are the lupon members entitled to some compensation? Do they have benefits due
to them?
The Lupon members shall serve without any compensation. If the barangay
has enough funds, we can always give honoraria to Lupon members who have
participated in the resolution of a particular case. On the other hand, under
Commission on Higher Education (CHED) order 62 series of 1997, two daughters or
sons of a Lupon member are qualified to become a state scholar in tertiary
education to any state colleges or universities.
State the functions of the Lupong Tagapamayapa:
The functions of the Lupong Tagapamayapa are the following:
a. Exercises administrative supervision over the concillation panels provided
under the law;
b. Meets regularly once a month to provide a forum for exchange of ideas among
its members and the public on matters relevant to amicable settlement of
disputes, and to enable various conciliation panel members to share with one
another their observations and experiences in effecting speedy resolution of
disputes; and
c. Exercises such other powers and perform such other duties and functions as
may be prescribed by law or ordinance. (Sec 402 of the Local Government
Code)
What is Pangkat ng Tagapagkasundo?
Composition:
Pangkat ng Tagapagkasundo is a conciliation panel constituted for each
dispute brought before the Lupon. It is composed of three (3) members who shall
be chosen by the parties to the dispute from the list of members of the Lupon.
Should the parties fail to agree on the Pangkat membership, the same
shall be determined by lots drawn by the Barangay Chairman. (Sec 404 of the
Local Government Code)
How shall the Pangkat organize?
The three (3) members constituting the Pangkat shall elect from among
themselves the chairman and the secretary. The secretary shall prepare the
minutes of the Pangkat proceedings and submit a copy duly attested to by the
chairman to the Lupon Secretary and to the proper city or municipal courts. He
shall issue and caused to be served notices to the parties concerned. (Sec 404
of the Local Government Code)
How shall the vacancies in the Pangkat be filled up?
Any vacancy in the Pangkat shall be chosen by the parties to a dispute
from among the Lupon members. Should the parties fail to agree on a common
choice, the vacancy shall be filled by lot to be drawn by Lupon Chairman. (Sec
405 of the Local Government Code)
What is the character of office of Lupon members?
The Lupon members, while in the performance of their official duties or
on occasion thereof, shall be considered persons in authority, as defined in the
Revised Penal Code. (Sec 406 of the Local Government Code)
Take Note: As an effect, if a Lupon member is assaulted or attacked while in
performance of official duty or on occasion thereof, the crime committed is
Direct Assault. (Reyes, 2008)
Are all disputes subject to Barangay Conciliation before filing a Complaint in
Court or any government offices?
All disputes are subject to barangay conciliation and prior recourse
thereto is a pre – condition before filing a complaint in court or any
government offices, except in the following disputes:
a. Where one party is the government, or any subdivision or instrumentality
thereof;
b. Where one party is a public officer or employee and the dispute relates to
the performance of his official functions;
c. Where the dispute involves real properties located in different cities and
municipalities, unless the parties thereto agree to submit their difference
to amicable settlement by an appropriate Lupon;
d. Any complaint by or against corporations, partnerships or juridical
entities, since only individuals shall be parties to barangay conciliation
proceedings either as complainants or respondents;
e. Disputes involving parties who actually reside in barangays of different
cities or municipalities, except where such barangay units adjoin each other
and the parties thereto agree to submit their differences to amicable
settlement by an appropriate Lupon;
f. Offenses for which the law prescribes a maximum penalty of imprisonment
exceeding one (1) year or a fine of over five thousand pesos (P5,000.00);
g. Offenses where there is no private offended party;
h. Disputes where urgent legal action is necessary to prevent injustice from
being committed or further continued, specifically the following:
 Criminal cases where the accused is under police custody or detention;
 Petitions for habeas corpus by a person illegally deprived of his
rightful custody over another or a person illegally deprived of or on
acting in his behalf;
 Actions coupled with provisional remedies such as preliminary
injunction, attachment, delivery of personal property and support during
the pendency of the action; and
 Actions which may be barred by the Statute of Limitations.
i. Any class of disputes which the President may determine in the interest of
justice or upon the recommendation of the Secretary of Justice;
j. Where the dispute arises from the Comprehensive Agrarian Reform Law (CARL);
k. Labor disputes or controversies arising from employer – employee relations;
l. Actions to annul judgment upon a compromise which may be filed directly in
court. (Aggranzamendez, 2008 & Secs 408 & 412 of the Local Government Code)
What are the cases under the Katarungang Pambarangay?
The following are the cases under the Katarungang Pambarangay:
a. Unlawful Use of Means of Publication And Unlawful Utterances (Art. 154);
b. Alarms and Scandals (Art. 155);
c. Using False Certificates (Art. 175);
d. Using Fictitious Names and Concealing True Names (Art. 178);
e. Illegal Use of Uniforms and Insignias (Art. 179);
f. Physical Injuries Inflicted in A Tumultuous Affray (Art. 252);
g. Giving Assistance to Consummated Suicide (Art. 253);
h. Responsibility of Participants in A Duel If Only Physical Injuries Are
Inflicted or No Physical Injuries Have Been Inflicted (Art. 260);
i. Less Serious Physical Injuries (Art. 265);
j. Slight Physical Injuries and Maltreatment (Art. 266);
k. Unlawful Arrest (Art. 269);
l. Inducing A Minor to Abandon His/Her Home (Art. 271);
m. Abandonment of A Person in Danger and Abandonment of One’s Own Victim (Art.
275);
n. Abandoning A Minor (A Child Under Seven [7] Years Old) (Art. 276);
o. Abandonment of A Minor by Persons Entrusted With His/Her Custody;
Indifference Of Parents (Art. 277);
p. Qualified Tresspass To Dwelling (Without The Use Of Violence And
Intimidation). (Art. 280);
q. Other Forms Of Tresspass (Art. 281);
r. Light Threats (Art. 283);
s. Other Light Threats (Art. 285);
t. Grave Coercion (Art. 286);
u. Light Coercion (Art. 287);
v. Other Similar Coercions (Compulsory Purchase of Merchandise and Payment Of
Wages By Means Of Tokens). (Art. 288);
w. Formation, Maintenance and Prohibition of Combination of Capital Or Labor
Through Violence Or Threats (Art. 289);
x. Discovering Secrets Through Seizure and Correspondence (Art. 290);
y. Revealing Secrets with Abuse of Authority (Art. 291);
z. Theft (If the Value of The Property Stolen Does Not Exceed P50.00). (Art.
309); aa. Qualified Theft (If the Amount Does Not Exceed P500). (Art. 310);
aa. Occupation of Real Property or Usurpation Of Real Rights In Property
(Art 312); cc. Altering Boundaries or Landmarks (Art. 313);
dd. Swindling or Estafa (If the Amount Does Not Exceed P200.00). (Art.
315); ee. Other Forms of Swindling (Art. 316);
bb.
Swindling A Minor (Art. 317); gg. Other Deceits (Art. 318);
cc. Removal, Sale or Pledge of Mortgaged Property (Art. 319);
dd.
Special Cases of Malicious Mischief (If the Value of the Damaged
Property Does Not Exceed P1,000.00). (Art 328);
ee.
Other Mischiefs (If the Value of The Damaged Property Does Not
Exceed P1,000.00). (Art. 329);
ff. Simple Seduction (Art. 338);
gg.
Acts of Lasciviousness with The Consent of The Offended Party (Art
339);
hh. Threatening to Publish and Offer to Prevent Such Publication For
Compensation (Art. 356);
ii. Prohibiting Publication of Acts Referred to In the Course Of Official
Proceedings (Art. 357); oo. Incriminating Innocent Persons (Art. 363);
jj. Intriguing Against Honor (Art. 364);
kk. Issuing Checks Without Sufficient Funds (Bp 22); And
ll. Fencing of Stolen Properties If the Property Involved Is Not More
Than P50.00 (Pd 1612).
What Are the Rules to Be Considered In Determining The Venue In Settling
Disputes?
The Rules in Determining Venue in Settling Disputes are the Following:
1. The Disputes Between Persons Actually Residing in The Same Barangay
Shall Be Brought for Amicable Settlement Before The Lupon Of Said
Barangay;
2. Those Involving Actual Residents of Different Barangays Within the Same
City or Municipality Shall Be Brought in The Barangay Where the
Respondent Or Any Of The Respondents Actually Resides, At The Election
Of The Complainant;
3. All Disputes Involving Real Property or Any Interest Therein Shall Be
Brought in The Barangay Where the Real Property or The Larger Portion
Thereof Is Situated; And
4. Those Arising At The Workplace Where The Contending Parties Are Employed
Or At The Institution Where Such Parties Are Enrolled For Study Shall Be
Brought In The Barangay Where Such Workplace Or Institution Is Located.
Take Note: The respondent must raise the question of improper venue in the
mediation proceedings before the Punong Barangay; otherwise, the same shall be
deemed waived. (Sec 409 of the Local Government Code)
It must be stressed further that “waive” means renounce. (Bloomsburry,
2007) Sample Case:
Mr. Quiambao resides in Barangay Matatalaib, Tarlac City and Mr. Padua
resides in Barangay San Vicente,Tarlac City. For an unknown reason, Mr.
Quiambao punched and kicked Mr. Padua at the Tarlac City Public Market.
Mr. Padua was incapacitated to work for 1 day. After regaining his strength, Mr.
Padua filed a complaint before the Barangay Chairman of Barangay San Vicente
wherein Mr. Quiambao was subsequently summoned and participated in amicable
settlement until the Pangkat ng Tagapagkasundo was constituted. After the
Pangkat was constituted, Mr. Quiambao realized that there was a mistake in venue
because “letter b” above states that the venue is where the respondent resides.
May Mr. Quiambao properly assert that there is improper venue in the mediation
proceedings?
No, Mr. Quiambao may not properly assert that there is improper venue in
the mediation proceedings.
This is an example of the statement above that the respondent must raise
the question of improper venue in the mediation proceedings before the Punong
Barangay; otherwise, the same shall be deemed waived.
What is the procedure to be followed for settlement of disputes at the barangay
level?
The procedure to be followed in resolving disputes in the barangay level are the
following:
a. The complainant complains orally or in writing to the Lupon Chairman of the
barangay; If the complaint is done orally, it is the duty of the Lupon
Chairman to place it in writing.
b. Within the next working day from receipt of the complaint, the Lupon
Chairman shall summon the respondent, with notice to the complainant, for
them and their witnesses to appear before him for mediation;
c. If the Lupon Chairman fails in his mediation efforts within fifteen (15)
days from the first meeting of parties, he shall set a date for the
constitution of the Pangkat ng Tagapagkasundo;
d. The Pangkat shall convene not later than three (3) days from its
constitution to hear both parties and their witnesses, simplify issues, and
explore all possibilities for amicable settlement;
e. The Pangkat shall arrive at settlement or resolution of the dispute within
fifteen (15) days, from the day it convened; otherwise the Certification to
File Action shall be issued. (Sec 410 of the Local Government Code)
Take Note: The term “summon” means invite. (Bloomsbury, 2007)
It must be stressed further that the one complaining before the Barangay
Captain is known as complainant and the one being charged is known as the
respondent. (Aggranzamendez, 2008)
Who shall issue Certification to File Action?
The Certification to File Action shall be issued by any of the following:
The Certification to File Action shall be issued by any of the following:
a. The Lupon Secretary and attested by the Lupon Chairman, certifying that
a confrontation of the parties has taken place and that a conciliation
or settlement has been subsequently repudiated;
b. The Pangkat Secretary and attested by the Pangkat Chairman, certifying
that:
1. Confrontation between the parties took place but no conciliation
and/or settlement has been reached; or
2. No confrontation took place before the Pangkat through no fault of
the complainant.
c. The Punong Barangay, as requested by the proper party on the ground of
failure of settlement where the dispute involves members of the same
indigenous cultural community, which shall be settled in accordance with
the customs and traditions of that particular cultural community, or
where one or more of the parties mutually agreed to submit their
disputes to the indigenous system of amicable settlement, and there has
been no settlement as certified by the Datu or tribal leader or elder to
the Punong Barangay of the place of settlement. (Aggranzamendez, 2008)
If the parties have reached a settlement of their dispute, in what form must the
settlement be?
The form of amicable settlement:
The amicable settlement shall be in writing, in a language or dialect
known to the parties, signed by them and attested by the Lupon Chairman or
Pangkat Chairman, as the case may be.
When the parties to a dispute do not use the same language or dialect,
the settlement shall be written in a language or dialect known to them. (Sec 411
of the Local Government Code)
The effect of amicable settlement:
If an amicable settlement is not repudiated by any of the parties within
ten (10) days from the date thereof, it shall have the effect of final judgment
of a court. (Sec 416 of the Local Government Code)
How may a party to the dispute repudiate the amicable settlement?
Any party to the dispute may repudiate the settlement by filing with the
Lupon Chairman, within ten (10) days from the date of settlement, a statement of
repudiation sworn to before him, on the ground that such consent of said party
is vitiated by fraud, intimidation, or violence (FIV). Such repudiation shall be
a sufficient basis for the issuance of certification to file action. (Sec 418 of
the Local Government Code)
If the amicable settlement is not repudiated within ten (10) days from the date
thereof, how may it be enforced?
If the amicable settlement is not repudiated within ten (10) days from
the date thereof, it may be enforced by execution by the Lupon within six (6)
months from the date of the settlement. After the lapse of the six – month
period, it may be enforced by action in the appropriate Municipal Trial Court.
(Sec 417 of the Local Government Code)
Define arbitration. How and when is it done?
Arbitration is the process of resolving a dispute or a grievance outside
of court system by presenting it to a third person or panel for decision.
(Aggranzamendez, 2008)
How shall parties submit their dispute for arbitration?
The parties may submit their dispute to the Lupon Chairman or Pangkat for
arbitration by entering into a written agreement to arbitrate. The written
agreement to arbitrate shall state that the parties shall abide by the
arbitration award of the Lupon Chairman or the Pangkat ng Tagapagkasundo. (Sec
413 of the Local Government Code)
May any of the parties repudiate the agreement to arbitrate?
Yes, any party may repudiate the agreement to arbitrate but he must do so
within five (5) days from the date of the execution of agreement to arbitrate.
(Sec 413 of the Local Government Code)
Within what time shall the Lupon Chairman or the Pangkat Chairman make the
arbitration award and in what form will it be?
The Lupon Chairman or the Pangkat Chairman shall make the arbitration
award after the expiration of the period for repudiation of the agreement to
arbitrate and within ten (10) days thereafter. The arbitration award shall be in
writing and in the language or dialect known to the parties. (Sec 413 of the
Local Government Code)
Can the arbitration award be repudiated?
No. the arbitration award cannot be repudiated. The remedy against an
arbitration award is to file with the appropriate Municipal Trial Court a
petition for its nullification within ten (10) days from the date thereof.
If no petition for nullification is filed within the ten – day period, the
arbitration award shall have the effect of a final judgment of a court. (Sec 417
of the Local Government Code)
How shall an arbitration award be enforced?
An arbitration award may be enforced by execution by the Lupon within six
(6) months from the date of the settlement. After the lapse of the six – month
period, it may be enforced by action in the appropriate Municipal Trial Court.
(Sec 417 of the Local Government Code)
In Katarungang Pambarangay proceedings, may the parties appear with the
assistance of their counsel?
No. By the express provision of law, parties must not be assisted by
counsel in pambarangay proceedings. Minors and incompetents are assisted by next
– of – kin who are not lawyers. (Sec 415 of the Local Government Code)
Aside from the stated positions in the Barangay level, there is
Sangguniang Barangay, a very important organization. The Sangguniang Barangay,
the legislative body of the Barangay, shall be composed of the Punong Barangay
as presiding officer, and the seven (7)regular Sangguniang Barangay members
elected at large and Sangguniang Kabataan chairman, as members. (Sec 390 of the
Local Government Code)
The term of office of barangay chairmen and Sangguniang Barangay Members
shall be five (5) years. (Par c, Sec 1 of RA 8524)
State the functions of the Sangguniang Barangay:
The Sangguniang Barangay, as the legislative body of the Barangay, shall
have functions which include the following:
a. Enact ordinances as may be necessary to discharge the responsibilities
conferred upon it by law or ordinance and to promote the general welfare of
the inhabitants therein;
b. Enact tax and revenue ordinances, subject to the limitations imposed by the
Local Government Code;
c. Enact annual and supplemental budgets in accordance with the provisions of
the Local Government Code;
d. Provide for the construction and maintenance of barangay facilities and
other public works projects chargeable to the general fund of the barangay
or such other funds actually available for the purpose;
e. Submit to the Sangguniang Panlungsod or Sangguniang Bayan such suggestions
or recommendations as it may see fit for the improvement of the barangay or
for the welfare of the inhabitants thereof. (Sec 391 of the Local Governemt
Code)
Terms to Ponder:
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Adjudication is the power of courts or quasi-judicial agencies to decide
cases filed before them and falling within their jurisdiction.
Amicable Settlement is an agreement reached during mediation and
conciliation proceedings.
Arbitration is a process wherein the third party from outside the judicial
system is chosen by parties to hear and decide their dispute.
Arbitration Award is the decision reached by either the lupon chairperson or
pangkat, as the case may be, upon prior agreement in writing by the parites
to a dispute for the adjudicators to resolve it.
Attachment is a provisional remedy in the form of an order issued by a judge
before whom the case is pending by which the property is taken into legal
custody as security for satisfaction of a judgment obtained by the
prevailing party, either at the commencement of the action or any time after
the filing of the case before the final judgment.
Complainant — plaintiff (one complaining before the Barangay Captain).
Complaint is a concise statement of ultimate facts constituting the
plaintiff’s cause and causes of action.
Conciliation is a process wherein the Pangkat forgoes the power to decide or
recommend but assist the parties to isolate issues and options to reach a
settlement by consensus that jointly satisfies their needs
Delivery of Personal Property (Replevin) is provisional remedy by which a
judge before whom an action is pending for the recovery of personal property
issues an order for the delivery of such property to the movant or the party
filing the petition upon filing of a bond to guarantee its return or to
answer for the damages.
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Execution is the process of exacting satisfaction for on or both of the
parties through compulsory or coercive means. It entails the enforcement of
the terms of the amicable settlement or arbitration award in so far as this
may enjoin or command any of the parties to perform an act, give something
or refrain from doing some act
Habeas Corpus is a judicial proceeding for the purpose of releasing a person
who is illegally deprived of liberty or restoring rightful custody to the
person who has been deprived of.
Incompetent means a person who is suffering the penalty of civil
interdiction; or who is a hospitalized. Leper, prodigal, deaf and dumb who
is unable to communicate; one who is of unsound mind, even though he has a
lucid intervals and a person not being unsound mind but by reason of age,
disease, weak mind, and other similar causes, cannot, without outside aid,
take care of himself and mange his property, becoming thereby an easy prey
for deceit and exploitation.
Jurisdiction is an authority to hear and decide a case and given by law and
cannot be agreed by the parties.
Katarungang Barangay (KP) is a system of justice administered at the
barangay level for the purpose of amicable settling disputes through
mediation, conciliation or abitration among the family or barangay without
resorting to the courts.
Lupong Tagapamayapa (Lupon) is a body organized in every barangay composed
of Punong Barangay as the chairperson and not less than ten (10) and more
than twenty from which the members of every Pangkat shall be chosen.
Mediation is a process wherein the Lupon chairperson or Barangay Chairperson
assists the disputing parties to reach a settlement by consensus that
jointly satisfies their needs.
Minor is a person below eighteen (18) years of age.
Next of Kin is an individual who is a relative or a responsible friend with
whom the minor or incompetent lives.
Pangkat Tagapagkasundo (Pangkat) is a conciliation panel constituted from
the Lupon membership for every dispute brought before the Lupon consisting
of three (3) members after the Punong Barangay has failed in his mediation
efforts.
Preliminary injunction is a provisional remedy in the form of an order
issued by a judge before whom the case is pending at any stage before the
final judgment requiring a person to refrain from a particular act.
Repudiation is an act of rejecting the validity or refusing to accept the
terms and conditions of agreement on the ground of vitiation of consent by
fraud, violence or intimidation.
Respondent — defendant (one being charged).
Statute of Limitations is the law which bars or does not allow the
institution or filing of an action or case against another after the
expiration of the period prescribe d for such action or offense
Support Pendente Lite is a provisional remedy in a form of an order issued
by a judge before whom the case is pending granting allowance, dwelling,
clothing, education and medical attendance to the person entitled thereof.
Venue is the place where the case is to be heard and decided. This is not
fixed by law except in criminal cases, and can be agreed upon by the
parties.
CHAPTER 2.2
Concept and Principles of Restorative Justice
Introduction of Restorative Justice
Restorative justice refers to a principle which requires a process of
resolving conflicts with the maximum involvement of the victim, the offender and
the community. It seeks to obtain reparation for the victim; reconciliation of
the offender, the offended and the community; and reassurance to the offender
that he/she can be reintegrated into society. It also enhances public safety by
activating the offender, the victim and the community in prevention strategies.
It embraces a wide range of human emotions – healing, mediation, compassion,
forgiveness, mercy, and reconciliation. (Par q, Sec 4 of RA 9344)
Justification of introducing restorative justice:
The current Philippine criminal justice system, after considering the
duties and functions of its different pillars, reveals its defects and they are
the following:
a.The victims of a crime may not pursue a criminal case against the
perpetrator because of lack of support from the government especially the person
arrested for the commission of a crime or the accused persons have
numerous rights compared to the victims of a crime;
b.The suspects who are actually fall guys may be convicted because they
have no money to spend especially in hiring experienced and skilled lawyers to
defend them;
c.The criminal cases may be dismissed because of insufficiency of
evidence or technicality even if the accused confessed that he was the one who
committed the crime;
d.The accused may be convicted of a charge and a penalty is imposed by
the court but the victim or the society as a whole is not yet contented of the
suffering that the accused may undergo;
e.The trial of a case may take a very period of time notwithstanding the
presence of the Speedy Trial Act;
Even if a perpetrator is imprisoned or has undergone a community – based
treatment, he may not be reformed or rehabilitated; and
In fact, correction is known as the weakest pillar of the Criminal
Justice System because of its failure to reform and rehabilitate offenders.
g.The persons who were imprisoned by reason of the crime they committed
may not be effectively reintegrated in the community.
This is because they may always be called ex – convicts and most
employers do not hire persons with a criminal record.
As a result of these defects, the victims of a crime may again be
victimized by the system to suffer financially and emotionally especially if the
perpetrator is not directed by the court to pay anything to them. Because of
this, the restorative justice was introduced. It is the purpose of restorative
justice to settle the issue between the offender and the offended party with
their active participation. The members of the community must also give their
active participation for the offended and the offender to be as much as possible
satisfied with the penalty imposed.
It may be true that the restorative justice may be abused by the offender
by just paying the offended party with a certain amount of money but consider
the fact that human beings cannot really establish a perfect criminal justice
system. It is still believed that the restorative justice will lessen the
numerous problems encountered in our present criminal justice system.
In fact, it may be concluded that the abolition of Republic Act 7659 or
the Death Penalty Law has deepened our understanding of the character and
dynamics of the Philippine criminal justice system, particularly its punitive
and retributive orientation. (Tradio, 1996; Pangda, 2007)
After the abolition of the Death penalty law, Republic Act 9285 was
enacted to further strengthen the restorative justice. Said law is 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. (Title of RA 9285)
Take Note: Alternative Dispute Resolution System 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. (Par 1, Sec 3 of RA 9285)
Aside form the Alternative Dispute Resolution System, the court may also conduct
Judicial Dispute Resolution. What is the process to be observed in conducting
Alternative Dispute Resolution?
The following is the process to be observed in conducting Judicial Dispute
Resolution before the court:
a. Before trial, the judge may refer the case to the Mediation Center for
conciliation, mediation, or arbitration;
b. If there is no settlement in the Mediation Center, the judge will conduct a
judicial dispute resolution; and
c. If the Judicial Dispute Resolution again fails, the judge will conduct trial
to determine the guilt of the accused and impose the proper penalty in case
of conviction.
One of the justifications of penalty is retribution. What are the distinctions
between retributive justice and restorative justice?
The following are the distinctions between retributive justice and
restorative justice:
a. Retributive justice is an approach focused on determining the following:
 What law was broken;
 Who broke it; and
 How shall offenders be punished?
Restorative justice, on the other hand, is an approach focused on
determining the following:
 What is the harm resulted from the crime;
 What needs to be done to repair the harm; and
 Who is responsible for repairing the harm?
b. Retributive justice considers a crime as an act against the State,
while restorative justice considers a crime as an act against the
victim and the community;
c. In retributive justice, the control of crimes lies to the criminal
justice system, while in restorative justice, the control of crimes lies
to the community;
d. In retributive justice, the community is represented by the State,
while in restorative justice, the community is the facilitator in the
restorative process;
e. Retributive justice focuses on the past by determining the person to be
blamed for the crime committed, while restorative justice focuses on
the future to determine the matters to be considered so that the
crime will not be repeated;
f. Retributive justice focuses on the offender’s past behavior, while
restorative justice focuses on the consequences of offender’s behavior;
g. Retributive justice emphasizes the adversarial relationship, while
restorative justice emphasizes dialogue and negotiations;
h. Retributive justice considers crime as an individual act with
individual responsibility, while restorative justice considers crime as
both individual and social responsibility; and
i. Retributive justice is based on the principle of lex talliones, while
restorative justice is based on forgiveness and reconciliation.
Take Note: “Lex talliones” is a law of equal and direct retribution. In the
words of the Hebrew scriptures, Le talliones means "an eye for an eye, a
tooth for a tooth, an arm for an arm, a life for a life." The earliest
written code of laws was the Code of Hammurabi, the most famous of the
Old Babylonian, or Amorite, kings of Mesopotamia. Hammurabi's code of
laws is almost entirely based on the principle of equal and direct
retribution; it betrays the origin of law in retributive violence.
Since the lex talionis is often the earliest form that law takes, from
it we can conclude that the basic function of law is revenge and
retribution. Unlike direct retribution, however, the law is
administered by the State or by individuals that cannot be victims of
revenge in return.
It must be stressed further, however, that lex talliones is the law
of proportionality. Hence, if a property worth 100 gold coins is
stolen, the victim cannot claim 200 gold coins in return.
The fundamental principles of Restorative Justice:
The fundamental principles of Restorative Justice are the following:
a. Justice requires that all must work to restore those who have been
injured like the victims, the community, and even the offenders;
b. Those most directly involved and affected by crime should have the
opportunity to participate fully in the response if they wish; and
c. The government is responsible for preserving a just public order and the
community establishes peace.
CHAPTER 3
CRISIS MANAGEMENT
Basic Concept
Crisis from the Greek word “CRISIS” which means to separate. It refers to
unstable and dangerous social condition characterized by an impending abrupt
change involving economic, military, political, police, societal or personal
affairs that is approaching emergency level event.
Emergency
from the
Latin word “EMERGENTIA” which means
dipping;
plunging. It is a sudden condition or situation calling for immediate action.
Crisis Management refers to the action undertaken to unify and coordinate
resources and efforts to effectively and efficiently quell a given criminal/life
threatening situation.
EMERGENCY, CRISIS AND DISASTER DISTINGUISHED
If the situation is still controlled and the response given is for the
purpose of containing the situation from getting out of control, then it is just
an EMERGENCY.
If the situation is already beyond normal control what is happening is
already a CRISIS.
If the effects of the crisis can no longer be controlled even by its
author, it is now a DISASTER.
Types of Crisis
a. Natural crisis – is typically natural disasters considered as acts of God,
such as environmental phenomena as earthquakes, volcanic eruptions, tornadoes
and hurricanes, floods, landslides, tsunamis, storms, and droughts that
threaten life, property, and the environment itself.
b. Man-Made Crisis is civil disturbance, revolt, revolution, border incident,
war, kidnapping, hijacking, hostage-taking, terrorists activities, attacks on
government facilities, etc.
Objectives of Crisis Management
a.
b.
c.
d.
Resolve without further incident.
Safety of all participants.
Apprehension of all perpetrators.
Accomplishment of the task within the framework of current community
standard.
PURPOSE OF CRISIS MANAGEMENT: “SALVARI VITAS” – to save lives
PHASES OF CRISIS MANAGEMENT
1. Proactive Phase includes prediction, prevention and preparation.
2. Reactive Phase performance, initial action, action, and post action.
LEGAL REGIMES IN DEALING WITH CRISIS
Sec. 6, Article XVI, 1987 Constitution The State shall establish and
maintain one police force, which shall be national in scope and civilian in
character, to be administered and controlled by the NAPOLCOM. The authority of
local executives over the police units in their jurisdiction shall be provided by
law Sec. 444 and 445, R.A. 7160 The mayor shall act as the deputized
representative of the NAPOLCOM, which shall exercise operational control and
supervision over the local police forces in the city and municipality.
HOSTAGE INCIDENT
Hostage Incident is any incident in which people are being held by another person
or persons against their will, usually by force or coercion, and demands are
being made by the hostage taker.
Hostage - Is a person held as a security for the fulfillment of certain terms
Negotiate - It means to arrange or settle by conferring or discussing.
Crisis Negotiation - means the use of communication techniques and
strategies to influence a person to change his behavior in accordance with goals
within legal, ethical, and moral constraints.
Characteristics of a Negotiable Incident
1.
2.
3.
4.
5.
6.
7.
8.
There must be a need to live on the part of a hostage taker.
There must be a threat of force on the part of the authorities.
There must be demands by the hostage taker.
The negotiator must be seen by the hostage taker as a person who can hurt the
hostage taker but is willing to help him.
There must be time to negotiate.
A reliable channel of communication must exist between the hostage taker and
the negotiator.
Both the location and the communications of the incident need to be contained
to encourage negotiation.
The negotiator must be able to deal with the hostage taker making the
decisions.
PRIORITIES IN HOSTAGE SITUATION
a. Preservation of live
b. Apprehend hostage taker
c. To successfully negotiate; there must be need to live on the part of the
hostage taker and a threat of force by the authorities.
CATEGORIES OF HOSTAGE-TAKER
1. PERSONS IN CRISIS is people who take hostages during a period of
prolonged frustration, despair and problems.
2. PSYCHOTICS is mentally-ill people who take hostage during a period of
psychiatric disturbance.
3. COMMON CRIMINALS is people who take hostages for personal reason.
4. PRISONER is people who take hostage because of dissatisfaction and discontent
regarding their living condition in prison.
5. POLITICAL TERRORIST is people who take hostages because of political and
ideological beliefs.
HANDLING OF SPECIFIC HOSTAGE SITUATION
1. PROFESSIONAL CRIMINAL
The easiest to handle as they rational thinker after assessing the
situation and weighing the odds, usually come to terms with the police.
PROPER HANDLING:
show
violence or useless killing.
force but
refrain
from
unnecessary
2. PSYCHOTIC INDIVIDUAL it present different and somewhat complex
problems
PROPER HANDLING: the hostage taker may feel a degree of pleasure if he
finds himself important, being the center of attraction. It prolonging the time.
3. TERRORIST is more difficult to handle. When caught, they rationalize by
claiming to be revolutionaries a situation they resolve to die for a
cause.
PROPER HANDLING: their causes may deteriorate in the passage of time.
if they kill one of the hostages, the negotiators then must set to save the
remaining hostages.
HOSTAGE TAKER’S DEMANDS
1. Negotiable is food, cigarettes, drinks, alcohol, transportation, media
coverage, freedom
2. Non-Negotiable like weapons,
ammunitions, drugs, release
of
prisoners, exchange of hostages
PRINCIPLES IN HOSTAGE NEGOTIATION
a.
b.
c.
d.
e.
the hostage has no value to the hostage taker
the priorities in the hostage situations are the preservation of
life and the apprehension of the hostage taker, recover and protect property.
hostage situation must not go violently
there must be a need to live on the part of the hostage taker
IMMEDIATE ACTIONS OF THE NEGOTIATOR UPON ARRIVAL AT THE SCENE OF INCIDENT
a.
b.
c.
d.
e.
f.
g.
Containment
controlling situation and area by people involved.
Establish Contact
communicate with the leader
Time Lengthening
give more time to the police to organize and coordinate plan of action.
Telephone Negotiation Technique
a) Be the caller (talk with the leader only)
b) Plan and prepare
c) Be ready with graceful exit
d) Discipline yourself to listen.
e) Do not tell that you are the commander, neither your rank
f) Just tell “My name is…I am a police negotiator and willing to help.
g) Delay tactic – to wear down hostage taker, physically, psychologically
and emotionally. Will also give more time for police organize and
coordinate plan course of action.
h) In case hostage taker won’t talk, continue negotiating. Don’t lose hope!
Advantages of Telephone Conversation
 easier to say NO
 easier to conclude the conversation
 conversation is quicker
 important items are more easily committed
 caller has the advantage
 Need for face-to-face conversation
 Don’t be over anxious
 wear body armor
 have tactical back-up (snipers)
 Face-to-face, maintain proper distance;
-Proper distance – 1 to 3 feet.
 Intimate distance – about 6 inches
 Ask to surrender. Do not talk too much. Gradually ask him to surrender.
 Reassurance is the wisest thing to do. Talk details of surrender process.
And explain why now is better than later.
Crisis Negotiation Bargaining Techniques
 The use of time to increase basic needs, making it more likely that the
subject will exchange a hostage for some basic needs.
 The used of time to collect intelligence on the subject that will help
develop a trade.
 The use of time to reduce the subject’s expectation of getting what he
wants.
 Trades can be made for food, drink, transportation and money.
 Trades cannot be
made for
weapons
or
the
exchange
of
hostages.
 The boss does not negotiate.
 Start bidding high to give yourself room to negotiate.
 Never draw attention to the hostages, it gives the subject too much
bargaining power.
 Manipulate anxiety levels by cutting off power, gas, etc.
Stockholm Syndrome
It is the development of unique relations between the hostages and the
hostage taker. A strong attachment of the hostage victim to the hostage takers
after a long period of captivity, by the hostage became sympathizer of the
hostage takers.
CRISIS MANAGEMENT TEAM
Team – is a small group of people with complementary skills who are
committed to a common purpose, performance goals and approach for which they hold
themselves mutually accountable.
NEGOTIATING TEAM
a. Negotiator Supervisor – is responsible for the overall functioning of the
negotiating
team.
In
addition
to
his
supervisory
skills,
the
supervisor must have leadership ability. He should see to it that the
situation is negotiable, appropriate personnel is available, intelligence is
gathered in timely manner, communications are established, negotiation
strategy is working-out, an appropriate record of the negotiation is kept,
and the commander is well informed.
b. Primary Negotiator – is the direct communication link to the hostage
taker and is responsible for developing verbal tactics, monitoring, and assessing
the hostage taker’s level of emotional arousal and helping the hostage taker
engage in problem solving.
c. Secondary Negotiator – is the pipeline between the negotiation
team and primary. He helps to develop verbal tactics, provides moral support for
the primary.
d. Intelligence Officer – is responsible for gathering intelligence from various
sources, interviewing all relevant persons involved in the incident,
collating and disseminating that information, maintaining and updating status
boards and making sure that all response units are receiving accurate and
timely intelligence.
e. Mental Health Consultant – is responsible for evaluating the
personality of the hostage taker, recommending negotiation strategies, monitoring
team stress, monitoring stress among the hostage takers and hostages.
f.Equipment Officer – is someone who understands technical
information regarding radios, computers, phone systems, mechanical systems, etc.
and can make minor repairs.
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Command Post It is the position from which a unit commander and his staff
exercise command over the hostage incident.
Ground Commander is the designated senior officer in command of the incident.
Also termed “incident commander”
a. Inner and Outer Perimeter
b. Inner Perimeter
–
is
the
immediate
area of
containment
as designated by the on-ground commander
c. Outer Perimeter – is a secondary control area surrounding the inner
d. perimeter, providing a safe zone for access to the inner perimeter.
TACTICAL TEAM
The Tactical Team is an assault team responsible in carrying out assault
operation whenever negotiation fails. A unit of specially selected, appointed,
trained and equipped officers that provides assistance in those incidents that
would require special tactics, techniques and equipment.
Tactical Team Components
a. Tactical Supervisor – is responsible for the mobilization of the
members of the team, deployment of the containment team, development of the
tactical plan and operation of the assault and arrest teams.
The tactical team is divided into three major components:
1. First Component – this component is responsible for maintaining perimeter
control both inner and outer. Also called containment sub-team.
2. Second Component – the second component is apprehension and assault team.
Members of this sub-team make an undetected approach to the location, plan
and prepare for the release of hostages, and make an assault if necessary.
Also called apprehension and assault sub- team.
3. Third
Component
–
is
the
sniper
/
observer
sub-team.
The
sniper/observer sub-team (third component) has two responsibilities:
a. Provide intelligence on factors present at the location. These factors
may include physical layout, placement of walls, furniture, specific
location of hostages and hostage takers, clothing and mental state of
hostages and hostage takers.
b. Prepare for a shot on the hostage taker.
Verbal Tactics in Crisis Communications
a. Concerned attitude – the negotiator communicates with an attitude
that he has genuine interest in the hostage taker.
Example: “Tell me what happened” “That must have been hard/sad/threatening”
and “I’d really like to help you”
b. Reasonable-problem solver – the negotiator assumes the role of a leader.
Example: “Let’s work together to be sure everyone is safe” “What would you
like to do about this” Let’s see what other solutions are possible”
c. Buddy-fellow traveler – it is one of commiseration with the hostage taker and
works well with trapped felons, impulsive people and antisocial
personalities.
Example: “Man I hear you, bosses never understand” “You know how they are
about”
d. Columbo-dumb but trying persona – the negotiator does not have all the answer
but is trying to do the best he can.
Example: “I know it’s taking a long time but we are trying” “I hate that I
can’t help any faster but”
e. Non-judgmental and directing – the negotiator is compassionate but firm and
competent. It is good with depressed persons, disoriented or dependent
people.
Example: “You sound pretty excited, take a deep breath and relax” “Let’s
take this next step slow so nobody gets hurt” “Check on your people for me to be
sure everyone is alright”
Active Listening Techniques
a. Open-Ended Questions/Statements –question or statements directed at the
hostage taker designed to get him to open up and give a long, verbal answer.
b. Effective Pauses – not saying anything when the hostage taker finishes
talking, encouraging him to fill the empty or blank space with additional
communications or information. Periods of silence that is used to emphasize a
point or to encourage the subject to say more.
c. Minimal Encouragement – saying yes, ok or other verbal indicators that the
negotiator is actually listening to the hostage taker. Brief, well- timed
response that let the subject knows the negotiator is paying attention. It is
a neutral non-threatening response that can be used with any subject.
d. Mirroring (Reflecting Feelings) – a response in which the negotiator mirrors
back to the hostage taker the emotions of the hostage taker in communicating,
the negotiator repeats the last word or phrase.
e. Paraphrasing – a response in which the negotiator gives the hostage taker the
essence of his message in the negotiator’s words. The negotiator repeats the
subject’s meaning in the negotiators words. It shows that the negotiator is
listening and understands the content of the subject’s message.
f. Emotional Labeling (Reflecting Meaning) – a response in which negotiator let
the hostage taker know he understands the facts and the feelings the hostage
taker is communicating. The use of emotionally descriptive words to show that
the negotiator understands the feelings the subject is experiencing.
g. I-Messages – a response in which the negotiator expresses his emotions in
response to the hostage taker. These are messages that personalize the
negotiator without becoming a personal attack and allow negotiator to
introduce new ideas without raising excessive resistance.
h. Summative Reflections – a response in which the negotiator summarizes
the main facts and feelings that the hostage taker has expressed over a
relatively long period.
REFERENCES
Festin, G. (2016). The Alternative Dispute Resolution and the Arbitration
Rex Book Store.
Law.
Philippine Congress (1953). 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. Official Gazette.
Philippine Congress (2004). 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. Official
Gazette.
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