Professional Documents
Culture Documents
Contents
OF COMMERCE)................................................23
Membership.............................................................
23
I. INTRODUCTION......................................................2
1.1
Governing bodies.....................................................24
World Council......................................................24
Executive Board...................................................24
International Secretariat.....................................24
1.3
UNDERSTANDING DISPUTE
RESOLUTION OPTIONS..........................................3
National Committees..........................................24
1.4
Advantages/Benefits and Disadvantages of
Alternative Dispute Resolution.................................5
Finance Committee.............................................24
1.4.1
Benefits of ADR.....................................5
1.4.2
Disadvantages of ADR.........................8
2.2.3
INTERNATIONAL CENTER FOR
SETTLEMENT OF INVESTMENT DISPUTES
(ICSID) (CONVENTION ON THE SETTLEMENT
OF INESTMENT DISPUTE BETWEEN STATES
AND NATIONALS OF OTHER STATES)...........24
1.4.3
BENEFITS OF ALTERNATIVE
DISPUTE RESOLUTION......................................9
1.5
ADR
1.5.1
1.5.2
1.5.3
1.6
1.7
SUBJECT OF ADR.......................................11
Sovereignty.................................................18
2.1.1.3
Independence...............................................19
COURT
OF
2.2.4
UNITED NATIONS COMMISSION
FOR INTERNATIONAL TRADE LAW
(UNICITRAL MODEL LAW ON INTRNATIONAL
COMMERCIAL ARBITRATION-1985)...............26
History.....................................................................26
Membership............................................................26
Conventions.............................................................27
Model laws...............................................................27
CLOUT (Case Law on UNCITRAL Texts)...............27
2.2.5
WORLD TRADE ORGANIZATION
(MARRAKESH AGREEMENT) (DISPUTE
SETTLEMENT UNDERSTANDING)..................27
2.3
ENFORCEMENT AND RECOGNITION OF
AWARDS.................................................................36
Convention on the Recognition and Enforcement of
Foreign Arbitral Awards..............................................36
Contents...................................................................36
Background..............................................................36
Summary of provisions............................................37
Parties to the New York Convention.......................37
United States Issues................................................37
2.4
TYPES OF ADR...........................................38
2.4.1
1. Negotiation......................................38
2.4.2
Assisted negotiation............................38
2.4.3
2. Mediation........................................38
2.4.4
3. Conciliation.....................................38
DOMESTIC ARBITRATION................................41
3.1 INTRODUCTION TO DOMESTIC
COMMERCIAL DISPUTE RESOLUTION..............41
3.2 ALTERNATIVE DISPUTE RESOLUTION
ACT OF 2004...........................................................41
Republic Act No. 9285.............................................41
April 2, 2004............................................................41
3.3 REPUBLIC ACT NO. 876 ARBITRATION
LAW OF THE PHILIPPINES..................................50
I. INTRODUCTION
BRIEF DESCRIPTION OF ADR
SYSTEM
Alternative Dispute Resolution
(ADR) also known as external dispute resolution in
some countries, such as Australia includes dispute
resolution processes and techniques that act as a means
for disagreeing parties to come to an agreement short of
litigation. It is a collective term for the ways that parties
can settle disputes, with (or without) the help of a third
party.
Despite historic resistance to ADR by many popular
parties and their advocates, ADR has gained
widespread acceptance among both the general public
and the legal profession in recent years. In fact, some
courts now require some parties to resort to ADR of
some type, usually mediation, before permitting the
parties' cases to be tried (indeed the European
Mediation Directive (2008) expressly contemplates
socalled "compulsory" mediation; attendance that is,
not settlement at mediation).
The rising popularity of ADR can be explained by the
increasing caseload of traditional courts, the perception
that ADR imposes fewer costs than litigation, a
preference for confidentiality, and the desire of some
parties to have greater control over the selection of the
individual or individuals who will decide their dispute.
1
http://en.wikipedia.org/wiki/Alternative_dispute_reso
lution
2
http://www.businessdictionary.com/definition/alterna
tivedispute-resolution.html#ixzz204cSk0Xz
VOLUNTARY
GOOD FAITH
91
4
http://www.cpuc.ca.gov/PUC/ADR/adrprinciples.htm
Non- Behaviour
Adversarial
, Informal
Process
Parties Have
May Destroy
DISADVANTAGE
ADVANTAGESMETHOD
Relationsh
ip
Time - Precedent
Efficient
Cost -
EfficientTo
Not Open
Public
Scrutiny
Confidentia l
Maintains
Business
Relationshi
ps
Appropriat
e For Fraud
Or
Criminal
Matters
Can
Establish a
Legal
Precedent
Not
Appropriate
For Fraud
Or
Criminal
Adversal
Approache
s
litigation
arbitration
Limited
Control
Over The
Outcome
High Cost &
Lengthy
Process
Appropriat
e Where
One Party
Has No
Intention
Of
Complianc
e
Business
s
AN EXPLANATION OF ALTERNATIVE
DISPUTE RESOLUTION METHODS
ASSISTED NEGOTIATION
The parties engage a professional negotiator or
'go-between' to assist parties reach a desired
result. It is usually informal and the negotiator
can either be appointed by one party or both.
In the latter situation he/she is a joint
negotiator. This method is often helpful in
smaller disputes where parties are still talking
to one another and need help to break an
impasse, and where they have identified all the
issues to be negotiated.
MEDIATION
Mediation is a process where an independent
person is used to assist the parties in dispute
to find a mutually acceptable solution. The
mediator will systematically work through the
issues, help identify alternatives, and facilitate
final agreement. The process is nonadversarial
and focuses on the parties' resolving the
dispute themselves using the skills of a
mediator. The key principle of
mediation is that the parties work together to
arrive at an agreement that suits both. This is
in contrast to litigation and arbitration where
a judge or arbitrator imposes a decision
which may be disappointing for one or both
parties.
A mediator is appointed by the parties to help
establish effective communication and by
doing so find a solution which satisfies both
their needs and interests. The informal
1.3.1
Benefits of ADR
Lower costs
Durability of agreements
Confidentiality
and
increased settlement
improved satisfaction with the outcome or
manner in which the dispute is resolved
among disputants
Disputant
Responses
Reason
Want to reduce costs
183
Want speedy resolution
159
Uncertainty of court outcome 142
Preservation
of
ongoing
86
relationship
Desire
for
compromise
82
solution
Desire for more control over
80
process and outcome
Privacy and confidentiality
74
Directed by contract, statute or
61
existing agreement
Desire for creative solution
48
Concerns
about
court
39
procedures [8]
% of Lawyers
(n=196)
93.4
81.1
72.4
43.9
41.8
40.8
37.8
31.1
24.5
19.9
* Multiple response.
Mediation and negotiation are seen as more likely than
arbitration to generate ADR benefits including:
Lawyers
Lawyers Lawyers
Working
Working Working Equally in
Primarily Primarily High
Perceived
Districtin
Determinant Total in HighCourt
and
Court
Court
District
(n=74)
(n=64)
Court
(n=58)
Disputant
76.0% 80.8%
78.1%
69.0%
willingness
Experienced
ADR
62.8% 68.5%
60.0%
66.1%
practitioner
Supportive
40.3% 37.5%
40.6%
45.6%
counsel
Judicial
14.8% 21.9%
10.9%
10.7%
support
Ongoing
relationship
14.3% 13.7%
15.6%
14.3%
between
disputants
17
26.6
12
20.7
2.7
13
20.3
5.2
4.1
3.1
10.3
1.4
0.0
1.7
ADR Advantages
1.4
5.4
1.6
12.5
1.7
6.9
* Multiple response.
In relation to the willingness of the disputants, it was
also noted by manyADR practitioners, lawyers and
the judiciary that although disputants may initially
feel hesitant and uncomfortable about ADR,
disputants in retrospectoften find the experience very
useful. This view is consistent with the findingsof the
disputant research project.
Cheaper resolution
Faster resolution
More control
Informal
process/relaxed/less
stressful
More creative solutions
Other
Preserves relationships
Responses
(n=49)*
30
27
8
%
ofInterviewees
61.2
55.1
16.3
12.2
5
5
3
10.2
10.2
6.1
* Multiple response.
1.3.2 Disadvantages
of ADR
Practitioners'
Views
on
the Disadvantages of ADR
Key
Limitations of Limitations of
Arbitration
Mediation (n=196)*
(n=196)*
ADRLimitatio
%
n
Response
of
of
Response
Lawyer
Lawyer
s
ss s
Enforceability 17 8.7 54 27.6 Delaying tactics 35 17.9 74 37.8
Increased Costs 80
40.8
35
17.9
* Multiple response.
Only a minority of the lawyers participating in the
lawyers' survey expressed concerns about those issues.
However, the disputants research does reveal how
powerful lawyers' views can be in relation to take-up of
ADR. A small group ofdisputants were explicitly
advised by their lawyer not to take-up ADR on the
grounds that it was too expensive or ADR would be
ineffective. Some disputants assumed that if lawyertolawyer informal discussion had failed to resolve the
dispute then ADR would simply not be an option.
Overall, however, surveyed lawyers tended to be
supportive of ADR. Indeed, among the lawyers
participating in the lawyers' survey around 64.4 percent
accepted the notion that there might be merit in the
court ordering parties to take-up ADR prior to
proceeding with a case. It is notable, however, that only
22.2 percent of the participant lawyers felt court orders
to arbitration were acceptable, compared to 53.7
percent who accepted the notion of the courts ordering
parties to mediation.
Even among lawyers who believed the benefits of ADR
were such as to justify some mechanism by which the
courts could order parties to mediation, there was still a
concern that ADR should not be promoted in a manner
that compromised litigants' access to justice.
Disputants' Views on the Disadvantages of
Disadvantages
of
Responses
Identified
Lackof enforcement
10
Increased costs
9
Delaying tactic
9
Other
7
Compromise of principles
7
ADR practitioner may not have
3
the technical skills required
Need other party to be willing
2
to come to the table
No right of appeal
2
Interviewees
20.4
18.4
18.4
14.3
14.3
6.1
4.1
4.1
* Multiple response.
Confidentiality:
Disputes resolved in court are public and any
judgments awarded are also public. Mediation,
arbitration, and mini trials are all conducted in
private and in strict confidentiality.
Experienced Neutral Panelists:
Our panelists are professional mediators and
arbitrators with training and expertise in dispute
resolution and insurance. Disputing parties are able
to select their panelist from a list of qualified
individuals who are specialized in specific aspects of
insurance. In the court system, binding decisions are
made by judges who may lack expertise in insurance
practices.
Cooperative Approach:
All ADR services take place in a more informal, less
confrontational atmosphere. This is more conducive
to maintaining a positive business relationship
between the two parties. With mediation, specifically,
the result is collaboration between the two parties.
general-civil-cases/4-advantagesanddisadvantages-of-adr
7
http://www.ibabc.org/idrsbc/benefits.html
1.4
COMPARISON
BETWEEN
Litigation AND ADR7
1.5
LIMITATION
GENERAL
OF
ADR
IN
http://wiki.answers.com/Q/What_are_the_disadvan
tages_and_advantages_of_Alternative_dispu
te_resolution#ixzz204zUKU00
10
10 http://www.opm.gov/er/adrguide/section1a.asp
INTERNATIONAL
ALTERNATIVE
DISPUTE
RESOLUTION/
PEACEFUL
SETTLEMENT OF
INTERNATIONAL
DISPUTE
2.1 INTRODUCTION TO PUBLIC
INTERNATIONAL LAW AND
PRIVATE INTERNATIONAL
LAW
which
governs the relationship between provinces and
international entities. It includes these legal fields:
treaty law, law of sea, international criminal law, the
laws of war or international humanitarian law and
international human rights law.
2.1.1.1Sovereignty
is the quality of having supreme, independent authority
over a geographic area, such as a territory. [1] It can be
found in a power to rule and make law that rests on a
political fact for which no purely legal explanation can be
provided. In theoretical terms, the idea of "sovereignty",
historically, from Socrates to Thomas Hobbes, has
always necessitated a moral imperative on the entity
exercising it.
For centuries past, the idea that a state could be
sovereign was always connected to its ability to
guarantee the best interests of its own citizens. Thus, if a
state could not act in the best interests of its own
citizens, it could not be thought of as a sovereign
state.[2]
The concept of sovereignty has been discussed
throughout history, from the time of the Romans
through to the present day. It has changed in its
definition, concept, and application throughout,
especially during the Age of Enlightenment. The current
notion of state sovereignty is often traced back to the
Peace of Westphalia (1648), which, in relation to states,
codified the basic principles:
territorial integrity
border inviolability
lawmaking
2.1.1.2Universal jurisdiction13
is a principle of international law that allows states to
investigate and prosecute a national of any state found
within their borders who is alleged to have committed
certain international crimes.
This principle is premised upon the idea that crimes
under international law such as war crimes, crimes
against humanity, airplane hijacking and genocide as
well as torture, extrajudicial killings, and forced
disappearances are so serious and reprehensible that any
state may prosecute the offender regardless of
nationality because they are in essence an enemy of
mankind.
In
exercising
universal
jurisdiction,
the
investigating and prosecuting state represents the
interests of the international community as a whole
12 http://en.wikipedia.org/wiki/Sovereignty
13
http://www.judicialmonitor.org/archive_1007/generalp
rincipl es.html
2.1.1.3Independence of the
Judiciary15
In Brief
International law requires that cases presented in
international tribunals and cases presented in domestic
tribunals where international law is applicable be
resolved by tribunals that are independent and that are
composed of independent judges.
In Theory
14 http://en.wikipedia.org/wiki/Universal_jurisdiction
15
http://www.judicialmonitor.org/archive_0506/generalp
rincipl es.html
of
law
recognized
by
Two
declarations
were
signed
as
well:
16
http://en.wikipedia.org/wiki/Hague_Conventions_of_1
899_an d_1907
History
The International Chamber of Commerce was founded in
1919 to serve world business by promoting trade and
investment, open markets for goods and services, and
the free flow of capital. The organization's international
secretariat was established in Paris and the ICC's
International Court of Arbitration was created in 1923.
ICC's first Chairman was 20th c. French Minister of
Finance Etienne Clmentel. ICC's current Chairman
is Gerard Worms[1]. Harold McGraw III[2] is
ViceChairman and Victor K. Fung[3] is Honorary
Chairman. In January 2011, Jean-Guy Carrier [4] was
elected Secretary General of ICC by the ICC World
Council.
Membership
There are two ways to become a member of ICC[5]:
1.
Through affiliation
committeeor group.
with
an
ICC
national
2. By
direct
membership
with
the
ICC
InternationalSecretariat
when
a
national
committee/group has not yet been established in
your country/territory.
Governing bodies
World Council
ICC' s supreme governing body is the World
Council, consisting of representatives of national
committees. The World Council elects ICCs highest
officers, including the Chairman and the ViceChairman, each of whom serves a two-year term.
The Chairman, ViceChairman and the Honorary
Chairman (the immediate past Chairman) provide
the
organization
with
highlevel
world
leadership.They play an important role in ICC
section.
National Committees
In 90 of the worlds nations, members have
established formal ICC structures called national
committees. In countries where there is no national
committee, companies and organizations such as
chambers
of
commerce
and
professional
associations can become direct members.
Finance Committee
The Finance Committee advises the Executive Board on
all financial matters. On behalf of the Executive Board, it
prepares the budget and regularly reports to the board.
It reviews the financial implications of ICC activities and
supervises the flow of revenues and expenses of the
organization.
Dispute Resolution Services
ICC International Court of Arbitration has received
15,000 cases since its inception in 1923. [28] Over the past
decade, the Court's workload has considerably expanded.
The Court's membership has also grown and now covers
86 countries. With representatives in North America,
Latin and Central America, Africa and the Middle East
and Asia, the ICC Court has significantly increased its
training activities on all continents and in all major
languages used in international trade.
ICC Dispute Resolution Services exist in many forms:
Executive Board
Strategic direction for ICC is provided by its
Executive Board, consisting of up to 30 business
leaders and exofficio members. It is elected by the
World Council on the recommendation of the
Chairmanship. Meeting three times a year, the
Executive Board oversees the establishment of ICCs
strategic priorities and the implementation of its
policies.
International Secretariat
Membership
UNCITRAL's original membership comprised 29 states,
and was expanded to 36 in 1973, and again to 60 in
2002. Member states of UNCITRAL are representing
different legal traditions and levels of economic
development, as well as different geographic regions.
States includes 14 African states, 14 Asian states, 8
Eastern European states, 10 Latin American and
Caribbean states, and 14 Western European states.
The Commission member States are elected by the
General Assembly. Membership is structured so as to be
representative of the world's various geographic regions
and its principal economic and legal systems. Members
of the commission are elected for terms of six years, the
terms of half the members expiring every three years. As
of 21 June 2010, the members of UNCITRAL, and the
years when their memberships expire, are:
The methods of work are organized at three levels.
The first level is UNCITRAL itself (The
Commission), which holds an annual plenary
session. The second level is the intergovernmental
working groups (which is developing the topics on
UNCITRAL's work program. Texts designed to
simplify trade transactions and reduce associated
costs are developed by working groups comprising
all member States of UNCITRAL, which meet once
or twice per year. Non-member States and
interested international and regional organizations
are also invited and can actively contribute to the
work since decisions are taken by consensus, not by
vote. Draft texts completed by these working groups
are submitted to UNCITRAL for finalization and
adoption at its annual session. The International
Trade Law Division of the United Nations Office of
Legal Affairs provides substantive secretariat
services to UNCITRAL, such as conducting research
and preparing studies and drafts. This is the third
level, which assists the other two in the preparation
and conduct of their work.
Conventions
The Convention is an agreement among participating
states establishing obligations binding upon those States
that ratify or accede to it. A convention is designed to
unify law by establishing binding legal obligations To
become a party to a convention, States are required
formally to deposit a binding instrument of ratification
or accession with the depositary. The entry into force of a
convention is usually dependent upon the deposit of a
minimum number of instruments of ratification.
UNCITRAL conventions:
Uncitral is:
and
International
Commercial
Model laws
A model law is a legislative text that is recommended to
States for enactment as part of their national law. Model
laws are generally finalized and adapted by UNCITRAL,
at its annual session, while conventions requires the
convening of a diplomatic conference.
UNCITRAL Model Law on International
Commercial Arbitration (1985) (text)
Model Law on International Credit
Transfers (1992)
UNCITRAL Model Law on Procurement of
Goods, Construction and Services (1994)
UNCITRAL Model Law on Electronic
Commerce (1996)
Model
Law
on
Arbitration (1985).
1. The
WTO
shall
provide
the
common
institutionalframework for the conduct of trade relations
among its Members in matters related to the agreements
and associated legal instruments included in the
Annexes to this Agreement.
2. The
agreements
and
associated
legal
instrumentsincluded in Annexes 1, 2 and 3 (hereinafter
referred to as Multilateral Trade Agreements) are
integral parts of this Agreement, binding on all
Members.
5.
3. The
agreements
and
associated
legal
instrumentsincluded in Annex 4 (hereinafter referred to
as Plurilateral Trade Agreements) are also part of this
Agreement for those Members that have accepted them,
and are binding on those Members. The Plurilateral
Trade Agreements do not create either obligations or
rights for Members that have not accepted them.
1.
8. The
bodies
provided
for
under
the
PlurilateralTrade Agreements shall carry out the
functions assigned to them under those
Agreements and shall operate within the
institutional framework of the WTO. These bodies
shall keep the General Council informed of their
activities on a regular basis.
The
General
Council
shall
make
appropriatearrangements for effective cooperation
with other intergovernmental organizations that
have responsibilities related to those of the WTO.
2. The
General
Council
may
make
appropriatearrangements for consultation and
cooperation with non-governmental organizations
concerned with matters related to those of the WTO.
2. The
Ministerial
Conference
shall
appoint
theDirector-General and adopt regulations setting
out the powers, duties, conditions of service and
term of office of the Director-General.
3. The Director-General shall appoint the membersof
the staff of the Secretariat and determine their
duties and conditions of service in accordance with
regulations adopted by the Ministerial Conference.
4. The responsibilities of the Director-General andof
the staff of the Secretariat shall be exclusively
international in character. In the discharge of their
duties, the Director-General and the staff of the
Secretariat shall not seek or accept instructions
from any government or any other authority
external to the WTO. They shall refrain from any
action which might adversely reflect on their
position as international officials. The Members of
the WTO shall respect the international character of
the responsibilities of the Director-General and of
the staff of the Secretariat and shall not seek to
influence them in the discharge of their duties.
the terms of
Conference.
accession
by
the
Ministerial
4. The
Ministerial
Conference
may
review
theoperation of this Article in particular cases at the
request of any Member and make appropriate
recommendations.
5.
2. Paragraph
1
may
be
invoked
between
originalMembers of the WTO which were
contracting parties to GATT 1947 only where Article
XXXV of that Agreement had been invoked earlier
and was effective as between those contracting
parties at the time of entry into force for them of
this Agreement.
1.
This
Agreement
and
the
Multilateral
TradeAgreements in Annexes 1 and 2 shall not apply
as between any Member and any other Member if
either of the Members, at the time either becomes a
Member, does not consent to such application.
back
to
top
Any
Member
may
withdraw
from
this
Agreement.Such withdrawal shall apply both to this
Agreement and the Multilateral Trade Agreements
and shall take effect upon the expiration of six
months from the date on which written notice of
withdrawal is received by the Director-General of
the WTO.
2. Withdrawal
from
a
Plurilateral
Trade
Agreementshall be governed by the provisions of
that Agreement.
6. This
Agreement
shall
be
registered
in
accordancewith the provisions of Article 102 of the
Charter of the United Nations.
DONE at Marrakesh this fifteenth day of April one
thousand nine hundred and ninety-four, in a single
copy, in the English, French and Spanish languages,
each text being authentic.
Explanatory Notes: back to top
The terms country or countries as used in this
Agreement and the Multilateral Trade Agreements are to
be understood to include any separate customs territory
Member of the WTO.
In the case of a separate customs territory Member of the
WTO, where an expression in this Agreement and the
Multilateral Trade Agreements is qualified by the term
national, such expression shall be read as pertaining to
that customs territory, unless otherwise specified.
Dispute settlement is regarded by the World Trade
Organization (WTO) as the central pillar of the
multilateral trading system, and as the organization's
"unique contribution to the stability of the global
economy".[1] A dispute arises when one member country
adopts a trade policy measure or takes some action that
one or more fellow members considers to a breach of
WTO agreements or to be a failure to live up to
obligations. By joining the WTO, member countries have
agreed that if they believe fellow members are in
violation of trade rules, they will use the multilateral
system of settling disputes instead of taking action
unilaterally this entails abiding by agreed procedures
(Dispute Settlement Understanding) and respecting
judgments, primarily of the Dispute Settlement Body
(DSB), the WTO organ responsible for adjudication of
disputes.[2]
A
former
WTO
Director-General
characterized the WTO dispute settlement system as "the
most active international
adjudicative mechanism in the world today."[3]
Dispute Settlement Understanding
5.
2.3
ENFORCEMENT
AND
RECOGNITION OF AWARDS
Convention
on
the
Recognition
and
Enforcement of Foreign Arbitral Awards
Location
US
Effective
7 June1959
Condition
3 ratifications
Signatories
24
Parties
146
Depositaries
Languages
at
1 Background
2 Summary of provisions
3 Parties to the New York Convention
4 States which are Not Party to the New York Convention
5 United States Issues 6 External links
7 References
Background
In 1953, the International Chamber of Commerce
(ICC) produced the first draft Convention on the
Recognition and Enforcement of International
Arbitral Awards to the United Nations Economic
and Social Council. With slight modifications, the
Council submitted the convention to the
International Conference in the Spring of 1958. The
Conference was chaired by Willem Schurmann, the
Dutch Permanent Representative to the United
Nations and Oscar Schachter, a leading figure in
international law who later taught at Columbia Law
School and the Columbia School of International
and Public Affairs, and served as the President of
the American Society of International Law.
5.
1. Negotiation
2.4.2
Assisted negotiation
2. Mediation
2.4.4 3. Conciliation
4. Arbitration
3 DOMESTIC ARBITRATION
3.1 INTRODUCTION TO
DOMESTIC COMMERCIAL
DISPUTE RESOLUTION
person
who
(t) "Mediation-Arbitration"
or
Med-Arb is
a
stepdispute resolution process involving both
mediation and arbitration;
(u) "Mini-Trial"
means
a
structured
dispute
resolutionmethod 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;
(v) "Model Law" means the Model Law on
International Commercial Arbitration adopted by
the United Nations Commission on International
Trade Law on 21 June 1985;
(w) "New York Convention" means the United
NationsConvention on the Recognition and
Enforcement of Foreign Arbitral Awards approved
in 1958 and ratified by the Philippine Senate under
Senate Resolution No. 71;
(x) "Non-Convention Award" means a foreign
arbitralaward made in a State which is not a
Convention State;
(y) "Non-Convention State" means a State that is not
amember of the New York Convention.
(z) "Non-Party Participant" means a person, other
thana party or mediator, who participates in a
mediation proceeding as a witness, resource person
or expert;
(aa)"Proceeding" means a judicial, administrative,
orother adjudicative process, including related
prehearing motions, conferences and discovery;
(ab) "Record" means an information written on
atangible medium or stored in an electronic or
other similar medium, retrievable form; and
(ac)"Roster" means a list of persons qualified toprovide
ADR services as neutrals or to serve as arbitrators.
SEC. 4. Electronic Signatures in Global and ECommerce
Act. - The provisions of the Electronic Signatures in
Global and E-Commerce Act, and its implementing
Rules and Regulations shall apply to proceeding
contemplated in this Act.
SEC. 5. Liability of ADR Provider and Practitioner. The
ADR providers and practitioners shall have the same
civil liability for the Acts done in the performance of then
duties as that of public officers as provided in Section 38
(1), Chapter 9, Book of the Administrative Code of 1987.
SEC. 6. Exception to the Application of this Act. - The
provisions of this Act shall not apply to resolution or
settlement of the following: (a) labor disputes covered by
(d) If
a
mediation
communication
is
not
privilegedunder an exception in subsection (a) or
(b), only the portion of the communication
necessary for the application of the exception for
nondisclosure may be admitted. The admission of
particular evidence for the limited purpose of an
exception does not render that evidence, or any
other mediation communication, admissible for any
other purpose.
SEC. 12. Prohibited Mediator Reports. - A mediator
may not make a report, assessment, evaluation,
recommendation, finding, or other communication
regarding a mediation to a court or agency or other
authority that make a ruling on a dispute that is the
subject of a mediation, except:
(a) Where the mediation occurred or has terminated,or
where a settlement was reached.
(b) As permitted to be disclosed under Section 13 ofthis
Chapter.
SEC. 13. Mediator's Disclosure and Conflict of
Interest. - The mediation shall be guided by the
following operative principles:
Model Law
Arbitration.
on
-
committee,
of
the
Interior
and
Section 25. Grounds for modifying or correcting 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:
September 1,
2009
f.
g.
Deposit
and
Enforcement
SettlementAgreements.
of
a.
c.
e.
f.
g.
PART I
GENERAL PROVISIONS AND POLICIES
b. Referral to ADR;
Interim Measures of Protection;
d. Appointment of Arbitrator;
i.
d. Appointment of Arbitrator;
e.
Mediated
Deposit
and
Enforcement
SettlementAgreements.
of
Mediated
(A) Service
and
filing
of
petition
in
summaryproceedings.-The petitioner shall serve,
either by personal service or courier, a copy of the
petition upon the respondent before the filing
thereof. Proof of service shall be attached to the
petition filed in court.
For personal service, proof of service of the petition
consists of the affidavit of the person who effected
service, stating the time, place and manner of the
service on the respondent. For service by courier,
proof of service consists of the signed courier proof
of delivery. If service is refused or has failed, the
Motion to dismiss;
f.
Rejoinder to reply;
g.
f.One or more of the issues are legal and one or moreof the
arbitrators are not lawyers;
g.
One or more of
Philippinenationals; or
the
arbitrators
are
not
Rule
4.4.
Comment/Opposition.
The
comment/opposition must be filed within fifteen
(15) days from service of the petition. The
comment/opposition should show that: (a) there is
no agreement to refer the dispute to arbitration;
and/or (b) the agreement is null and void; and/or
(c) the subject-matter of the dispute is not capable
of settlement or resolution by arbitration in
accordance with Section 6 of the ADR Act.
Rule 4.6. No reconsideration, appeal or certiorari. An order referring the dispute to arbitration shall be
immediately executory and shall not be subject to a
motion for reconsideration, appeal or petition for
certiorari.
c.
A detailed description
reliefsought;
of
the
appropriate
b. Preliminary
attachment
against
property
orgarnishment of funds in the custody of a bank
or a third person;
c.
Appointment of a receiver;
e.
Rule
5.8.
Comment/Opposition.
The
comment/opposition must be filed within fifteen (15)
days from service of the petition. The opposition or
comment should state the reasons why the interim
measure of protection should not be granted.
b. Notify the parties that the petition shall be heard ona day
specified in the notice, which must not be beyond the
twenty (20) day period of the effectivity of the exparte
order.
The respondent has the option of having the temporary
order of protection lifted by posting an appropriate
counter-bond as determined by the court.
If the respondent requests the court for an extension of
the period to file his opposition or comment or to reset
the hearing to a later date, and such request is granted,
the court shall extend the period of validity of the
exparte temporary order of protection for no more than
twenty days from expiration of the original period.
a.
f.
Rule
6.5.
Comment/Opposition.
The
comment/opposition must be filed within fifteen (15)
days from service of the petition.
Rule 6.6. Submission of list of arbitrators. - The court
may, at its option, also require each party to submit a list
of not less than three (3) proposed arbitrators together
with their curriculum vitae.
TO
APPOINTMENT
OF
Rule
8.5.
Comment/Opposition.
The
comment/opposition must be filed within fifteen (15)
days from service of the petition.
c.
e.
and
copying
a.
The
fact
that
there
is
an
ongoing
arbitrationproceeding even if such proceeding could
not continue due to some legal impediments;
d. The
names
and
addresses
of
the
intendedwitness/es, place where the evidence may
be found, the place where the premises to be
inspected are located or the place where the acts
required are to be done.
Rule
9.7.
Comment/Opposition.
The comment/opposition must be filed within
fifteen (15) days from service of the petition.
Rule 9.8. Court action. - If the evidence sought is
not privileged, and is material and relevant, the
court shall grant the assistance in taking evidence
requested and shall order petitioner to pay costs
attendant to such assistance.
Rule 9.9. Relief against court action. - The order granting
assistance in taking evidence shall be immediately
executory and not subject to reconsideration or appeal. If
the court declines to grant assistance in taking evidence,
the petitioner may file a motion for reconsideration or
appeal.
Rule 9.10. Perpetuation of testimony before the arbitral
tribunal is constituted. - At anytime before arbitration is
commenced or before the arbitral tribunal is constituted,
any person who desires to perpetuate his testimony or
place
when
the
ADR
RULE
10:
CONFIDENTIALITY/PROTECTIVE ORDERS
Rule
10.7.
Comment/Opposition.
The
comment/opposition must be filed within fifteen
(15) days from service of the petition. The
opposition or comment may be accompanied by
written proof that (a) the information is not
confidential, (b) the information was not obtained
during an ADR proceeding, (c) there was a waiver of
confidentiality, or (d) the petitioner/movant is
precluded from asserting confidentiality.
Rule 10.8. Court action. - If the court finds the
petition or motion meritorious, it shall issue an
order enjoining a person or persons from divulging
confidential information.
In resolving the petition or motion, the courts shall
be guided by the following principles applicable to
all ADR proceedings: Confidential information shall
not be subject to discovery and shall be inadmissible
in any adversarial proceeding, whether judicial or
quasi judicial. 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 therein.
For mediation proceedings, the court shall be
further guided by the following principles:
a. Information obtained through
beprivileged and confidential.
mediation
shall
OR
a.
c.
a.
of
a.
A
verification
and
certification
against
forumshopping executed by the applicant in
accordance with
Sections 4 and 5 of Rule 7 of the Rules of Court; and
a.
PART III
PROVISIONS SPECIFIC TO MEDIATION
(ii). The ultimate facts that would show that the adverse
party has defaulted to perform its obligation under said
agreement; and
b. Upholding
or
reversing
the
tribunalsjurisdiction pursuant to Rule 3.19;
arbitral
b. Neutral evaluation;
c.
Mini-trial;
e.Denying a petition for the appointment of anarbitrator;
d. Mediation-arbitration;
f. Refusing to grant assistance in taking evidence;
e.
A combination thereof; or
f.
g.
Rule 18.2. Applicability of the rules on mediation. If the other ADR form/process is more akin to
mediation (i.e., the neutral third party merely
assists the parties in reaching a voluntary
agreement), the herein rules on mediation shall
apply.
PART VI
MOTION FOR RECONSIDERATION,
AND CERTIORARI
APPEAL
f.
Granting or
ofprotection;
denying
an
interim
measure
f.
Setting aside an
arbitrationaward;
g.
international
commercial
an
i.
Dismissing
a
petition
to
enforce
internationalcommercial arbitration award;
an
j.
Recognizing and/or
arbitralaward;
enforcing
foreign
m. Reversing
the
ruling
of
the
tribunalupholding its jurisdiction.
arbitral
a.
D.
SPECIAL
CIVIL
ACTION
FOR
CERTIORARI
Rule 19.26. Certiorari to the Court of Appeals. When the Regional Trial Court, in making a ruling
under the Special ADR Rules, has acted without or
in excess of its jurisdiction, or with grave abuse of
discretion amounting to lack or excess of
jurisdiction, and there is no appeal or any plain,
speedy, and adequate remedy in the ordinary course
of law, a party may file a special civil action for
certiorari to annul or set aside a ruling of the
Regional Trial Court.
agreement
is
b. Reversing
the
arbitral
tribunals
preliminarydetermination upholding its jurisdiction;
c. Denying the request to refer the dispute to
arbitration;
e.
Denying a petition
anarbitrator;
for
the
f.
g.
h. Allowing
a
party
to
internationalcommercial arbitral
appeal;
appointment
of
enforce
an
award pending
i.
j.
if
the
award
exceeds
PhP
law
cannot
1. ADR
Provider
means
the
Institutions
or
personsaccredited as mediators, conciliators, arbitrators,
neutral evaluators 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.
2. Alternative
Dispute
Resolution
System
means
anyprocess or procedures 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, as
defined in the ADR Act, in which neutral third person
participates to assist in the resolution of issues,
Including arbitration, mediation, conciliation, early
5.
8. International
Arbitration
arbitrationwhere:
means
an
5.
FOR
ALTERNATIVE
DISPUTE
(d) To
establish
training
programs
for
ADRproviders/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;
CHAPTER 3
MEDIATION
is
unable
to
provide
(b) ensure
that
his/her
qualifications,
training
andexperience are known to and accepted by the parties;
and
(i) recommend
that
the
parties
seek
outsideprofessional advice to help them make
informed decision and to understand the
implication of any proposal; and
mediation
shall
in
the
child
experience
and
stature
of
CHAPTER 4
INTERNATIONAL COMMERCIAL ARBITRATION
RULE 1 General Provisions
Article 4.1. Scope of Application. (a) This Chapter
applies to international commercial arbitration,
subject to any agreement in force between the
Philippines and other state or states.
(b) This Chapter applies only if the place or seat
ofarbitration is the Philippines and in default of any
agreement of the parties on the applicable rules.
(c) This Chapter shall not affect any other law of
thePhilippines 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 4.2. Rules of Interpretation. (a) International
commercial arbitration shall be governed by the
Model
Law
on
International
Commercial
Arbitration.
(b) In interpreting this Chapter, regard shall be had tothe
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".
interim
any
other
appropriate
acts
set
aside
by
the
(ab)
the party making the application was not
givenproper notice of the appointment of an arbitrator
or of the arbitral proceedings or was otherwise unable
to present his case; or
(ad)
the composition of the arbitral tribunal or
thearbitral 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
(ii) the Court finds that:
(aa)the subject-matter of the dispute is not capable
ofsettlement by arbitration under the law of the
Philippines; or
(ab)
the award is in conflict with the public policy
ofthe Philippines.
(c) An application for setting aside may not be madeafter
three months have elapsed from the date on which the
The
recognition
andenforcement 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
nonconvention award as a convention award.
(c) The party relying on an award or applying for
itsenforcement 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.
(d) A foreign arbitral award when confirmed by a courtof a
foreign country, shall be recognized and enforced as a
foreign arbitral award and not as a judgment of a
foreign court.
other
expenses
incurred
by
other
(b) This
Chapter
shall
apply
to
domestic
arbitrationwhether the dispute is commercial, as
defined in Section 21 of the ADR Act, or noncommercial, 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.
(c) Two or more persons or parties may submit
toarbitration 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.
CHAPTER 5
DOMESTIC ARBITRATION
RULE 1 General Provisions
Article 5.1. Scope of Application. (a) 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
vitae
of
the
appearing
as
counsel
for
of
arbitrators
and
or
demand
(b) If
the
arbitration
agreement
provides
for
theappointment 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 date stated therein which shall not be less
than thirty (30) days from receipt of the demand.
(c) If
the
arbitration
agreement
provides
for
theestablishment 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 latters acceptance of the
appointment.
(d) Where
there
is
no
prior
arbitration
agreement,arbitration may be initiated by one party
the
or
proceedings,
through
a
of
on
the
termination
other
expenses
incurred
by
CHAPTER 7
OTHER ADR FORMS
qualification
of
the
neutral
Article
7.8.
MediationArbitration
(a)
A
MediationArbitration shall be governed by the rules
and procedure agreed upon by the parties, In the
absence of said agreement, Chapter 5 on Mediation
shall first apply and thereafter, Chapter 5 on Domestic
Arbitration.
which
by
law
may
not
be