Professional Documents
Culture Documents
ALTERNATIVE DISPUTE
RESOLUTION
By. Atty. Gabriel Robeniol
Chapter 1: Introduction
Historical Rule:
Judicial and Legislative trends:
Utilization of alternatie means and
methods implemented in or outside
the court trial system
Civil Code of the Philippines:
30 August 1950
Contains provisions of/or on
compromise arbitration.
Encourages litigants to agree upon
fair compromise and authorize
arbitration
19 June 1953
Enactment of arbitration law
Republic Act. 876
20 May 1965
Convention on the recognition and
enforcement of foreign arbitration /
arbitral awards
Philippine law has acknowledged the
international arbitration as system of
setting commercial dispute.
UNCITRAL
Model law which the Philippines
committed its adherence.
Judiciary Action
Response of Judiciary to the Problems of
Delay.
Legislative Action:
Special domestic legislation passed
the prescription of arbitration,
mediation and conciliation.
E.G:
o Labor
Code
of
the
Philippines
o National Labor Relations
Commissions
Concerning:
Unfair Labor Practice
Termination
of
Employment
Conditions
of
Employment
Damages arising from
EE
Brgy. Level Arbitration
Executive Branch Contribution:
CIAC Construction Industry
Arbitration Commission Enacted
during 4 Feb 1985 concerning
constriction dispute
23 August 1998 rules of procedure
governing construction arbitration
19 November 2005 CIAC revised
rules of procedure governing
construction arbitration
22 March 2010 rules on ADR for
dispute between national government
agencies: amicable settlement dipute
Disclaimer:
This should be treated as second reading, not your first reading, full text and books would still supply and provide for you better than this reviewer. To God Be the Glory
Sources of ADR
Domestic Laws and Rules
Constitution
Civil Code
Arbitration Law
Acts of the Executive Branch
Decisions of the Supreme Court
International Law : UNCITRAL
General principle of Law and Equity
Forms of ADR
Arbitration arrangement of the and
abiding by the judgment or selected
person in dispute; binding between
the parties
Mediation voluntary agreement
between the parties with the help of
third person to convince them to
come into an agreement; non binding
between eh parties.
Conciliation conciliation of dispute
in an unantagonistic manner
Neutral lawyers are brought to
present the summary of the case
Early Neutral availed of in pre
trial case
Mini trial merits of the case ar
argued in front of a panel
Any combination of the foregoing
Any other ADR forms
Classification of Forms of ADR
As to the number of parties:
Components of ADR
Contending parties
Dispute or controversy
Form of ADR
ADR provider or practitioner
contract
executed by the parties
o Compromise or compromise
agreement avoidance of
litigation or to put an end to
the one already existing
o Waiver or quitclaim a
statement renouncing any
right or claim
ADR providers or practitioners
Preferences of ADR
Office for ADR
ADR agency attached to DOJ
Executive Director appointed by the
president upon recommendation of
secretary of justice
under
the
Place of Mediation
Two disputing parties are free to
agree the place\
In the absence default is
convenient to and appropriate to all
the parties
Stages of Mediation
Opening statement of mediator
Individual narration by the parties
Exchange by the parties
Summary issues
Generalization and evaluation of
options
Closure
Mediation shall be held in private
Exceptions: Parties consented that there be
other persons
Closed and concluded
Execution of settlement agreement
Withdrawal of any party from
mediation
Written declaration
Advantages of Mediation
Confidentiality in Mediation Process
Prompt,
economical
amicable
dispute resolution
The Mediator
OADR list and freedom to select
mediators
Withdrawal Requirements
This is done for non commercial use/
Whoever reproduce this and gain profit for it will suffer the law of karma.
He/she will not pass his/her ADR and other exams.
Disclaimer:
This should be treated as second reading, not your first reading, full text and books would still supply and provide for you better than this reviewer. To God Be the Glory
Arbitration agreement
Agreement by the parties
In respect of legal relationship
Essential elements
Consent of the parties freely given
Cause of consideration
Lawful object
Policy on Arbitration
Speedy and inexpensive methods
Arbitrator
Disclaimer:
This should be treated as second reading, not your first reading, full text and books would still supply and provide for you better than this reviewer. To God Be the Glory
Rules of Interpretation
Interpretation of the ADR act
o due regard to the policy of law
favouring arbitration
Interpretation of the model Law
o need for uniformity of its
interpretation
Interpretation of the IRR
o Same policy
o Party autonomy
o Freedom of the parties
o Reference to an agreement
o Rules applicable to claims and
counter claims
Rules of Receipt of Written Communication
in ICA
The subject matter of the dispute may be
located in different stage
Rules communication is deemed received
Delivered to the address personally or at
his place of business, habitual residence
or mailing address
If there is none, delivery by registered
mail or attempt to deliver to last know
place of business
Waiver of the Rights to Object in ICA
Arbitration is different from mediation
in that the latter is not merit or evidence
based and therefore not procedurally
driven
Limitations
Doctrine of Estoppel
Objectives to non compliance with the
rules or any requirements under the
arbitration agreement must be raised
without undue delay or within the time
prescribed therefore, failing which, the
right to object is deemed waived
Estoppel in pais
Happens when one, by his acts,
representation, or admissions, or by his
own silicon when he ought to speak out,
intentionally or culpable negligence,
induces another to believe certain facts
to exist and such belief in a manner that
he will be prejudiced if the former is
permitted to deny the existence of such
facts
Confidentiality in ICA
General Rule
In the case of mediation, proceedings,
records, evidence, and arbitral awards
are confidential
Exceptions:
Consent of the Parties
Limited purpose of disclosing to the
court relevant documents in cases where
resort to the court is allowed
Due Process in ICA
IRR mandates that the parties shall be
treated equally and shall be given full
opportunity
Reasonable opportunity
Due Process
Place if ICA
Default place MANILA
Place chosen by Parties
Commencement of ICA proceedings
Date requested by the parties
Default date date of request for that
dispute
Language in ICA
Parties shall determine the language
Default English
Jurisdiction
o The right to act whether or the
power to and authority to hear
and determine cause
Two Instances
Lack of jurisdiction
Excess of jurisdiction
Jurisdictional review of Jurisdictional Issue
Consider challenge as preliminary
question
Defer resolution
Jurisdiction over the pArties
Pre causal agreement
Interim Measures in ICA
Request shall be in writing transmitted
by reasonable means
Relieve may be granted to prevent
irreparable loss, security, preserve
evidence, compel
Legal Representation in ICA
A person may be represented by any
person of his choice
Determination of Rules of Procedure
Statement of claims
Statement of Defence
Default of the parties
Amendment of claims or defences
Hearings (1) court assistance in taking
evidence (2) subpoena (3) expert
Conclusion / closure
Requisites for an Arbitral Award to be Final
Rendition of the arbitral award
Hearing on the qualification
Expiration of the periods
Cost in ICA
Fees on arbitral tribunal
Travel
Cost of expert advice
Travel and other expenses of witness
Cost for legal representation
Fees and expenses of appointing
authority
This is done for non commercial use/
Whoever reproduce this and gain profit for it will suffer the law of karma.
He/she will not pass his/her ADR and other exams.
Disclaimer:
This should be treated as second reading, not your first reading, full text and books would still supply and provide for you better than this reviewer. To God Be the Glory