Discussion February 15, 2016

QUALIFICATIONS OF AN ARBITRATOR
Personal qualities:
1. Judicial temperament/capacity
2. Managerial skills should know how to
manage people
3. Competence technical know-how on
construction disputes
4. Diplomacy maintain orderly behavior
5. Discretion not to disclose
information, be discrete
6. Flexibility they might need to adjust
on the various circumstances or any
changes
7. Availability there cannot be delay on
arbitration, there might be
Qualifications in general:
1.
2.
3.
4.

Professional qualification
Language proficiency Nationality
Place of residence

Qualifications required under the Model

Law:
1. Impartiality
2. Independence- disclose any
circumstances which may give rise to
justifiable doubts as to his
impartiality
May non-lawyers act as arbitrators?
Answer: Parties are free to nominate
arbitrators whose field of expertise is no in
the law. What is important is that they are
equipped technically on the merits of the
defenses.
Qualifications required by the parties in
agreement: (Model Law Art. 11-2)
1. Trade and professional qualification
2. Nationality
Disqualifications of an arbitrator:
1. Related by blood or by marriage within
the 6th civil degree to either party
2. Has or had financial, fiduciary or
another interest

3. Has any personal biased which might

prejudice the right of any party to a
fair and impartial award
Ethical Standards for Arbitrators:
1. Proceed diligently and effectively to
provide parties with just and effective
resolution of dispute
2. Accept appointment only if he is
competent to resolve issues in dispute
and language of the arbitration
3. Be impartial
4. Be independent
5. Disclose to the parties all facts and
circumstances that may give rise to
justifiable doubts about his impartiality
or independence
Justifiable Doubts of arbitrators: eyes of
the parties
Color-Coded list on Arbitrators
disclosure:
1. Red list facts where disclosure is
required, parties cannot waive
2. Pink list- waivable but the arbitrator
can only serve if both parties waive on
presumptive disqualification
3. Orange list disclosure required within
30 days
4. Green list no disclosure, is required
and arbitrator is free to accept the
appointment
Sources of powers of Arbitrators:
1.
2.
3.
4.

Model Law
Arbitration Agreement
Arbitration Rules
Procedural law of the Arbitration

Duties of arbitrators
1. They must treat the parties with
equality
2. Give each party opportunity to present
its case
3. To conduct the arbitration in such an
appropriate manner
4. To conduct procedure in accordance
with any agreement of the parties
(model
5. To decide neither more or less that the
disputes submitted
6. To decide without undue delay

Powers of arbitrators:
1. To rule upon its own jurisdiction
2. To order interim measures of
protection including imposing a
requirement on a party to provide
security in respect of any such
measure
3. Subject to the agreement of the
parties:
- Determine the procedure including
admissibility, relevance, materiality
and weight of evidence
- Determine language of arbitration
whether to hold oral hearings for
the presentation of evidence or
oral argument or whether to
proceed on oral submissions.
4. Inspect goods, other property or
documents
5. Appoint one or more experts to report
on specific issues
6. Make interim or partial awards
7. Correct awards
8. Give an interpretation of a specific
point or a part of an award
9. Make an additional award (article 33)

3. Failure to act
4. De jure or de facto impossibility of
performing functions
Assignment:
No classes next week. Exercises will be sent
to Ms. Jo. Submit next meeting.
1. Statement of claims and statement of
defenses under model law
2. How to effect amendments to claims
and defenses
3. When amendment is allowed by the
arbitration tribunal
4. Provisional Remedies that arbitration
tribunal may award
5. Domestic arbitration law (chapter 5)
6. February 29: read all arbitral awards,
forms and terms

Grounds for Challenge: (remedy to cause

removal of a member of board of arbitrators)
1. Circumstances exist that give rise to
justifiable doubts as to impartiality
and independence
2. A party may challenge the arbitrator
appointed by him only for reasons that
arise or which he becomes aware of
after appointment has been made
Resolution of challenge of arbitrators:
1. Other party may agree to the
challenge
2. Arbitrator may withdraw
3. Decision by appointing authority or
arbitration institution where initial
appointment made by either one
Replacement of arbitrators may take
place as a result of:
1. Death
2. Resignation

From February 29, 2016

(Assignment Discussion)
POWERS OF AN ARBITRATOR:
1.) Rule upon its own jurisdiction (Art. 16
Model Law)
2.) Order Interim measure

3.) Determine procedure to be used

4.) Determine the place
5.) Determine the language
6.) Whether to hold oral hearings (Art. 24
Model Law)
7.) Inspect Goods
8.) Appoint one or more experts to report
9.) Make interim or partial awards (Art. 31
Model Law)
10.)
Correct awards (Art. 33 Model
Law)
ARBITRAL TRIBUNAL- WHEN
CONSTITUTED
-Art. 26 Model Law
GROUNDS FOR CHALLENGE
1.) Issues of impartiality
2.) Issues of independence
Also: incompetence
CHALLENGE MAY BE RESOLVED:
1.) Other party agrees to the challenge
2.) Challenged arbitrator may withdraw
from his nomination
3.) Decided By Appointing Authority
JURISDICTION OF ARBITRAL TRIBUNAL
Art. 16 UNCITRAL
PROVISTIONAL REMEDIES
EXAMPLES:
- Writ of preliminary injunction
- Appoint a receiver
- Inspection of property
FORMAL REQUISITES:
1. Must be in writing
2. Must decide appropriate relief in detail
and the party against whom the relief
is requested.
3. State the grounds relied upon
4. Must contain evidence supporting the
request.
PRE-HEARING PROCEDURE
Pre conference hearing to expedite the
hearing process by determining the
threshold issue.
(Threshold issue: whether or not arbitral
tribunal has jurisdiction)

Existence of arbitration agreement and

scope of agreement (issues resolve/ primary
issues)
(No valid agreement Court)
OTHER ISSUES:
1.) Discussion on the procedure and
mechanics for the handling of the
arbitrations
2.) Possibility of settlement
3.) Admission/ Stipulation of facts and
authenticity of documents
parties are asked to produce documents or
evidence and the other party will be asked
whether they are authentic or not.
4.) Simplification and definition of issues
Factual or legal
Principal or secondary
No stipulation each party shall define its
own rule
Why important: serves as a roadmap,
whether parties need to present evidence on
a factual or legal issue
5.) Quantification of claims
statement of the formulae, reckoning
dates, assumptions and basis for continuing
claims (i.e. running interest for delay)
6.) Amendment for pleadings
New issues, reserved issues, resolved/
classified issues, corrections
7.) Mode of service of pleadings and
notices
Must be to all parties, no ex-parte
communications
Mode may be personal, mall, fax email or
combination thereof
8.) Mode of recording the proceeding
transcripts, audio, video, summary minutes
or combination
9.) Submission of documents
pleading only basis, pleadings plus
documents, pleadings + docs + memoranda

Memoranda
Sums up everything that had transpired.
10.)
Limiting the number of witness
prior to the submission of statement of
witness.
Affidavits of witness
Problem: competency and credibility of
statements cannot be ascertained because
they cannot observe the demeanor of the
witness.
11.)
Addressing the issue of
confidentiality rule and its extent of
application.
12.)
Cost and sharing of cost
between the parties.
w/n parties deposit prior the proceeding
w/n partys share on cost will be set off to
his liability

13.)
Determine the end of hearing
procedure:
Whether there will be oral summation or
submission of memoranda or both.
Draft decision/award
Instruction on what to focus on
Simultaneous or sequential filing of
pleading and its deadlines (ie. reply,
rejoinder, sub-rejoinder, etc)

BENEFITS (IMPORTANCE)
Facilitate proceedings (slow start but faster
finish)
to prevent vacation of judgment
to minimize coast and expenses