ADR Reviewer

Alternative
Dispute Resolution AUSL 2018-‐2019

CHAPTER 1 -‐ Pre-‐causal consent: parties to a contract
INTRODUCTION stipulate that any dispute that will arise from
the contract shall be resolved by arbitration.
LAWYER’S ROLE (P2AB) -‐ Present-‐causal consent: parties to an existing
1. Contribute to the promotion of ADR; controversy voluntarily submit themselves
2. Assist the courts in encouraging the parties to either to arbitration or mediation.
avail of alternative means of dispute resolution; 4. ADR avoids court trial; and
3. Explain the benefits of ADR System to their 5. ADR usually involves the participation of a
clients; and neutral 3rd party.
4. May play the role of ADR provider or
practitioner. FORMS OF ADR
1. Arbitration
Lawyers, in view of his excellent communication skills, -‐ Voluntary dispute resolution process in which
probity and legal foresight, can be appointed as an one or more arbitrators, appointed in
arbitrator, mediator, conciliator or neutral evaluator. accordance with the agreement of the parties,
or rules promulgated pursuant to the ADR act,
CHAPTER 2 resolve a dispute by rendering an award.
FUNDAMENTALS OF ADR 2. Mediation
-‐ Voluntary process in which a mediator,
ALTERNATIVE DISPUTE RESOLUTION (ADR) selected by the disputing parties, facilitates
-‐A system, using means and methods allowed by communication and negotiation, and assists
law and approved by the parties, for the purpose of the parties in reaching a voluntary agreement
resolving or facilitating the resolution of disputes and regarding a dispute.
controversies between them, in an expeditious and 3. Conciliation
speedy manner, without resorting to court adjudication. -‐ The adjustment and settlement of a dispute in
a friendly, unantagonistic manner.
PRINCIPLES OF ADR 4. Neutral or Early Neutral Evaluation
1. Promotion of party autonomy and self-‐ -‐ Process wherein the parties and their lawyers
determination in the resolution of disputes. are brought together to present summaries of
-‐ Parties are give the freedom to choose the their cases and receive a non-‐binding
form of ADR they desire to avail of, they also assessment by an experiences neutral person
have the discretion to prescribe the procedure with expertise in the subject or in the
to govern the ADR process. Party autonomy substance of the dispute.
extends to the choice of ADR providers or 5. Mini-‐Trial
practitioners, the venue and the terms of the -‐ Structured dispute resolution method in which
concluding agreements. the merits of a case are argued before a panel
2. Recognition of ADR as an efficient tool and an composed of senior decision makers, with or
alternative procedure for the resolution of cases. without the presence of a neutral 3rd person,
3. Enlisting of private sector participation. after which the parties seek a negotiated
settlement.
OBJECTIVES & BENEFITS OF ADR 6. Any Combination
1. Speedy and Impartial Justice 7. Any other ADR form
2. Declogging of court dockets. -‐ Any arrangement agreed upon by the parties
-‐ Decongestion of court dockets is the ultimate that satisfies the requisites of ADR
objective of ADR.
ARBITRATION VS MEDIATION
FEATURES OF ADR ARBITRATION MEDIATION
1. ADR as a means used to resolve a dispute or An arbitral tribunal or The parties to the
controversy; arbitrator evaluates controversy are convinced
-‐ To resolve or facilitate the resolution of a evidence and the merits of by a mediator to settle
dispute or controversy in a speedy, amicable the case and renders and their controversy through a
and inexpensive manner. arbitral award based on his voluntary agreement
2. ADR utilizes means and methods allowed by law; appreciation thereof. executed by the parties
3. ADR is contractual in nature; themselves called
-‐ In line with the policy of the law to actively “mediated settlement
promote party autonomy, the parties to a agreement.”
dispute are given the freedom to agree to Arbitral award is rendered Voluntary agreement
resolve their dispute and decide on the by the 3rd party arbitral executed by the parties
procedure therefor. ADR and its procedures tribunal or arbitrator. themselves.
are contractual in character.
CLASSIFICATION OF FORMS OF ADR
Notes by Geraldine L. Yu 1

Alternative Dispute Resolution AUSL 2018-‐2019

As to the number Bilateral Multilateral or Following issues are not susceptible of ADR:
of parties Multi-‐party 1. Civil Status of Persons
As to the number Simple Complex 2. Validity of Marriage or any ground for legal
of issues involved -‐Only a single issue is -‐2 or more issues separation
involved involved 3. Jurisdiction of the Courts
As to the extent of Complete Partial 4. Future Legitime
conclusion -‐All the issues -‐Only 1 or some 5. Criminal Liability
involved are of the issues 6. In general, those which, by law, cannot be
resolved involved are compromised.
resolved
As to the role of Evidentiary or Non-‐ SEAT & VENUE OF ADR
evidence in the Merit-‐based evidentiary or -‐ The seat of ADR is the jurisdiction under whose law the
proceedings -‐Arbitration Non-‐merit proceeding is conducted.
based -‐ The venue or place of ADR is the actual site where the
-‐Mediation arbitration is being conducted.
As to the pendency Case-‐related Independent -‐ It is possible for the venue or place of arbitration to be in
of a court case -‐Conducted in -‐Conducted a country different from the country where the
connection with or irrespective of arbitration has its seat.
as a pre-‐requisite to any pending
trial court case BASIC CONCEPTS
involving the 1. Concluding Acts or Agreements
issue -‐ ADR proceedings are completed upon the
As to the Ad hoc Institutional execution of a concluding act or agreement.
permanence of the -‐Existence of the -‐Existence of the These may take the form of a mediated
ADR provider or ADR practitioner is ADR provider is settlement agreement or a compromise
practitioner only temporary for permanent in agreement in the case of mediation, a
the purpose of a character and is judgement based on compromise in the case of
particular dispute or not dependent a court annexed mediation, or a waiver or
controversy on any dispute quitclaim in case of conciliation. They make
or controversy take the forms of arbitral award, award on
As to the Domestic International Foreign agreed terms, consent award or award based
applicable -‐Parties’ -‐Parties’ places of -‐If it is on compromise in case of arbitration.
law places of business are in conducted 2. ADR Providers and Practitioners
business, different states; or outside -‐ The arbitrator is unquestionably authorized
place of the place of the PH. to render a binding resolution of the dispute
arbitration, arbitration is between the parties and is bound to consider
place of outside the PH, the merits of the controversy.
performanc place where a -‐ The mediator is precluded from discussion
e of the substantial part of the merits of the controversy and cannot
obligation the obligation is to render a binding assessment of the dispute.
involved be performed
are located outside the PH, or By nature of their functions, ADR providers and
in the PH. the parties have practitioners, including arbitrators and mediators, act in
agreed that the quasi-‐judicial capacity. They are quasi-‐judicial agencies or
subject matter of instrumentalities.
the dispute relates
to more than one Theirs decisions or awards are generally reviewable in a
country. special civil action for certiorari under Rule 65 of the
1997 Rules of Civil Procedure as amended.
COMPONENTS OF ADR
1. Contending Parties OFFICE FOR ALTERNATIVE DISPUTE RESOLUTION
2. Dispute or Controversy (OADR)
3. Form of ADR The ADR Act of 2004 created the OADR, which is an
4. ADR Provider or Practitioner attached agency of the Department of Justice (DOJ). It is
headed by an Executive Director appointed by the
SUBJECT MATTERS OF ADR president upon the recommendation of the Secretary of
All adversarial disputes and controversies can be the Justice.
subject matter of ADR, except those which by law or
reasons of public policy are declared not capable of being Objectives, Powers and Functions of the OADR:
subjected to ADR.


1. To promote, develop and expand the used of ADR Mediation shall be closed and concluded:
in the private and public sectors through 1. By the execution of a settlement agreement by
information, education and communication; the parties;
2. To assist the government to monitor, study and 2. By the withdrawal of any party from mediation;
evaluate the use by the public and private sectors or
of ADR, and recommend to Congress needful 3. By the written declaration of the mediator that
statutory changes to develop, strengthen and any further effort would not be helpful.
improve ADR practices in accordance with world
standards; Advantages of Mediation
3. To act as an appointing authority of mediators The following assurances are provided for the parties in
when the parties agree in writing that it shall be order to maintain the confidence of the mediation parties
empowered to do so; and in the mediation process and encourage them to avail of
4. To compile and publish a list or roster of ADR mediation as a mode of settling their disputes:
providers/practitioners, and to compile a list or 1. Confidentiality in the mediation process;
roster of foreign or international ADR providers 2. Prompt, economical and amicable resolution of
or practitioners. disputes; and
3. The decision-‐making authority rests in the
CHAPTER 3 parties.
MEDIATION UNDER THE ADR ACT OF 2004
CONFIDENTIAL AND PRIVILEGED NATURE OF
MEDIATION IN GENERAL MEDIATION COMMUNICATION
The ADR Act of 2004 maintains the confidentiality of
Mediation is a voluntary process un which a mediation process by declaring that all information
mediator, selected by the disputing parties, facilitates obtained through mediation proceedings are privileged
communication and negotiation, and assists the and confidential in character.
parties un reaching a voluntary agreement regarding
a dispute. (Definition under the ADR Act of 2004) One way by which the ADR Act of 2004 is enforcing and
guaranteeing this privilege is by declaring certain
Excluded from the coverage of ADR Act are the court-‐ information as confidential and therefore, not capable if
annexed mediation (CAM), conciliation conducted by being disclosed. Another way of ensuring the privilege is
lupong tagapamayapa and pangkat ng by declaring the privileged information inadmissible in
tagapagkasundo and the judicial dispute resolution evidence.
(JDR).
Confidential Information includes: (not exclusive)
Classification of Mediation 1. Communication, oral or written, made in a
-‐Mediation is non-‐evidentiary or non-‐merit based. dispute resolution proceeding, including any
Mediation focuses on the facilitation of memorandum, note or work product of the
communication and negotiation between the parties neutral or non-‐party participant;
in order to encourage them to voluntarily settle their 2. An oral or written statement made or which
dispute. occurs during the mediation or for purposes of
considering, conducting, participating, initiating,
Place of Mediation continuing or reconvening mediation or retaining
-‐To promote party autonomy, the parties are given a mediator; and
the freedom to agree on the place of mediation. In the 3. Pleadings, motions, manifestations, written
absence of such agreement, the place of mediation statements and reports filed or submitted in
shall be any place convenient and appropriate to all arbitration or for expert evaluation.
parties (default venue).
Legal Effects of Confidential and Privileged Nature
Stages in Mediation 1. A party, mediator or non-‐party participant may
1. Opening statement of the mediator; refuse to disclose and may prevent any other
2. Individual narration by the parties; person from disclosing confidential information.
3. Exchange by the parties; 2. Confidential information shall not be subject to
4. Summary of issues; discovery and shall be inadmissible in any
5. Generalization and evaluation of options; and adversarial proceeding whether judicial or quasi-‐
6. Closure. judicial.
The foregoing process is not obligatory and the parties, 3. In an adversarial proceeding, persons involved or
under the principle of party autonomy may choose the previously involved (party or non-‐party) in
procedure that will govern their mediation. mediation may not be compelled to disclose
confidential information obtained during
mediation.



4. The protection under the ADR Act shall continue 1. Where the mediation occurred or has
to apply even if a mediator is found to have failed terminated, or where settlement was reached; or
to act impartially. 2. As permitted to be disclosed under Sec. 13 of the
5. A mediator may not be called to testify to provide ADR Act, i.e.: disclosure of known facts that
information gathered in mediation. would likely affect the impartiality of the
mediator.
Exceptions based on Agreement, Nature of Proceedings,
Crime or Social Justice Waiver of Confidentiality
The privilege does not attach to or exist in the ff The protection of confidentiality and privileged nature of
communication: mediation communication is susceptible to waiver.
1. Those contained in an agreement evidenced by a
record authenticated by all parties to the Waiver can either be expressed or implied: 1. By failing to
agreement. timely object to an objectionable question propounded
2. Those available to the public or made during a during a trial, or to a document being offered in evidence,
session of mediation which is open, or is required or 2. By testifying or presenting a witness to testify on
by law to be open to the public. confidential and privileged information.
3. A threat or statement of a plan to inflict bodily
injury or commit a crime of violence. THE MEDIATOR
4. Communication intentionally used to plan, A mediator who refuses to act may withdraw or may be
attempt to commit, or commit, a crime, or conceal compelled to withdraw from the mediation proceedings
an on-‐going crime or criminal activity. under the ff circumstances:
5. Communication sought or offered to prove or 1. If any of the parties requests the mediator to
disprove abuse, neglect, abandonment, or withdraw.
exploitation in a proceeding in which a public 2. The mediator does not have the qualifications,
agency is protecting the interest of an individual training and experience to enable him to meet
protected by law. the reasonable expectations of the parties.
6. Communication sought or offered to prove or 3. Mediator’s impartiality is in question.
disprove a claim or complaint of professional 4. The continuation of the process will violate an
misconduct or malpractice filed against a ethical standard.
mediator in a proceeding. 5. Safety of any one of the parties will be
7. Communication sought or offered to prove or jeopardized.
disprove a claim or complaint of professional 6. Mediator is unable to provide effective services.
misconduct or malpractice filed against a party, 7. In case of conflict of interest.
non-‐party participant, or representative of a 8. Other instances provided for under the IRR.
party based on conduct occurring during
mediation. Duties & Functions of Mediators
1. Prior to mediation
Exceptions based on Public Policy a. On Competence-‐ should maintain and
For reasons of public policy, the privilege cannot be continually upgrade his professional
invoked for evidence that is shown, before a court or competence in mediation skills; ensure
administrative agency, after a hearing in camera. There is that his qualifications, training and
a need for that evidence that substantially outweighs the experience are known to and accepted
interest in protecting confidentiality. by the parties.
1. A court proceeding involving a crime or felony; b. On Impartiality-‐ mediator should make
2. A proceeding to prove a claim or defense that an inquiry that is reasonable under the
under the law is sufficient to reform or avoid a circumstances to determine whether
liability on a contract arising out of mediation. there are known facts that are
reasonable individual would consider
Privilege of the Mediator likely to affect his impartiality.
-‐The mediator himself is bound by the confidential and 2. During the mediation
privileged nature of mediation communication. He is a. Confidentiality
required to keep in utmost confidence all confidential b. On consent and self-‐determination-‐ shall
information obtained in the course of mediation process, exert reasonable efforts to ensure that
and to discuss issues of confidentiality with the mediation each party understands the nature and
parties before beginning the mediation process. character of the mediation proceedings.
c. On promotion of respect and control of
A mediator may not be compelled to provide evidence of a abuse of process-‐ mediator shall
mediation communication or testify in such proceeding. encourage mutual respect between the
He may not make a report, assessment, evaluation, parties.
recommendation, or other authority that will make a
ruling on a dispute that is the subject of mediation except:


Mediator’s Costs and Fees The ADR Act and its IRR govern voluntary arbitration.
In an ad hoc mediation, the parties are free to make their
own arrangements as to mediation costs and fees. International Arbitration:
In an institutional mediation, mediation costs shall Parties’ place of business: Is in different
include the administrative charges of mediation states
institution, mediator’s fees and associated expenses. Place of arbitration: Outside the PH
Place where a substantial part of the Outside the PH
If the mediator withdraws from the mediation, he shall obligation is to be performed:
return any unearned fee and unused deposit. Parties have expressly agreed that the subject matter of
the arbitration agreement relates to more than 1 country.
MEDIATED SETTLEMENT AGREEMENT
-‐It is the concluding document in a successful mediation. Domestic Arbitration:
Parties’ place of business:
In whatever form it may be, the concluding agreement has Place of arbitration:
the effect of res judicata and, therefore, binding upon the Place where a substantial part of the
parties whether or not it has been submitted to the court obligation is to be performed: Located In the PH
for approval. Place where the subject matter of
the dispute is mostly connected:
ROLE OF COUNSEL IN MEDIATION

1. Collaborate with the other lawyer in working
International Commercial Arbitration (ICA) vs Foreign
together towards a common goal of helping their
Arbitration
clients resolve their differences to their mutual
ICA FOREIGN
advantage.
Seat is with the PH even if Seat is outside the PH even
2. Encourage and assist the client to actively
the place of arbitration is if the place of arbitration is
participate in positive discussions and cooperate
outside the PH. in the PH.
in crafting an agreement to resolve their dispute.

3. Assist the client to comprehend and appreciate
OBJECTIVES OF ARBITRATION
the mediation process and its benefits, as well as
The basic objective of arbitration is to provide speedy and
the client’s greater and personal responsibility
inexpensive method of settling disputes by allowing the
for the success of mediation in resolving the
parties to avoid the formalities, delay, expense and
dispute.
aggravation which commonly accompany ordinary
4. Confer and discuss with the client the mediation
litigation, especially litigation which goes through the
process and substance.
hierarchy of courts.

CHAPTER 4
ARBITRATOR
ARBITRATION IN GENERAL
An arbitrator is the person appointed to render an award,

alone or with others, in a dispute that is the subject of an
CONCEPT OF ARBITRATION
arbitration agreement.

Arbitration is a voluntary dispute resolution process in
Voluntary arbitrators, by the nature of their functions, act
which one or more arbitrators, appointed in accordance
in quasi-‐judicial capacity, such that their decisions are
with the agreement of the parties or rules promulgates
within the scope of judicial review. A voluntary arbitrator
pursuant to the ADR Act, resolve a dispute by rendering
has been characterized as a quasi-‐judicial instrumentality.
an award. (Definition under the ADR Act of 2004)

ARBITRATION AGREEMENT
ARBITRATION MEDIATION
-‐The agreement of the parties to submit to arbitration all
It is the arbitrator that It is the parties
or certain disputes which have arisen or which may arise
decides the dispute and themselves who enter
between them in respect of a defined legal relationship,
renders an arbitral award into and execute a
whether contractual or not. By nature, an arbitration
to conclude the arbitral mediated settlement
agreement is contractual, it should have the essential
proceeding. agreement to conclude
requisites of a contract (Consent, Object, Cause).
the mediation

proceeding.
There are 2 modes of submitting a dispute or controversy

to arbitration: 1. Agreement to submit to arbitration, and
KINDS OF ARBITRATION
2. Submission agreement.
1. Voluntary-‐ parties freely consent in advance to

abide by the arbitral award
Agreement to submit to Submission Agreement
2. Compulsory-‐ where the parties are compelled to
Arbitration
accept the resolution of their dispute through
Some future dispute An agreement to submit an
arbitration by a third party.
usually stipulated upon in a existing matter of

civil contract between the difference to arbitrators.

parties Under the Special Rules of Court on ADR, the court may
issue an order directing the inclusion in the arbitration of
An arbitration agreement is a formal contract; its validity those parties who are not bound by the arbitration
is dependent on the contract being executed in a agreement but who agree to such inclusion provided
particular form. It shall be in writing and subscribed by those originally bound by it do not object to their
the party to be charged, or by his lawful agent. It may be inclusion.
included in the container contract in which case, it is
referred to as an arbitration clause or a compromissoire, Non-‐compliance with the arbitration agreement renders
or may be constituted in a separate contract. null and void all the judicial proceedings conducted after
the case should have been referred to arbitration.
DOCTRINE OF SEPARABILITY
Otherwise known as the doctrine of severability, this CHAPTER 5
doctrine enunciates that an arbitration agreement is INTERNATIONAL COMMMERCIAL ARBITRATION
independent of the main contact even if it is contained in UNDER THE ADR ACT OF 2004 AND ITS IRR
an arbitration clause.
International Arbitration:
DUE PROCESS IN ARBITRAL PROCEEDINGS Parties’ place of business: Is in different
Principles of Administrative Due Process equally apply to states
arbitral proceedings. Place of arbitration: Outside the PH
Place where a substantial part of the Outside the PH
JUDICIAL REVIEW AND COURT INTERVENTION obligation is to be performed or the
Three types of Judicial Intervention: place with which the subject matter
1. Judicial Assistance in Arbitration of the dispute is mostly connected:
-‐ Allows the parties in an arbitration to secure Parties have expressly agreed that the subject matter of
from the courts orders or processes that will the arbitration agreement relates to more than 1 country.
aid in the conduct of arbitration.
2. Judicial Review of Arbitral Awards Arbitration is commercial if it covers matters arising form
-‐ Involves the passing upon, to the extent allowed all relationships of a commercial nature, whether
and on grounds provided for by law, the contractual or not.
propriety of the arbitral award.
3. Judicial Review of Court Decisions in ADR Related International Commercial Arbitration (ICA) vs Foreign
cases Arbitration
-‐ Involves the remedies available from decisions ICA FOREIGN
or orders of the RTC and the CA rendered in An ICA with the PH as its An ICA whose seat is
the first two types of judicial intervention. seat is governed by the outside the PH is a foreign
ADR Act and the IRR, even arbitration even if the place
Decisions of an arbitral award are subject to judicial if the place of arbitration is of arbitration is in the PH.
review. outside the PH.

A review by the SC is not a matter of right, but of sound COVERAGE OF IRR PROVISIONS ON ICA
judicial discretion, which will be granted only for serious The provisions of Chapter 4 of the IRR, dealing with the
and compelling reasons resulting in grave prejudice to the subject of ICA, are applicable only to ICA conducted in
aggrieved party. The error imputed to the CA must be accordance with Philippine Law covering disputes that
grounded upon any of the prescribed grounds for review are not prohibited by Philippine law to be submitted for
or be closely analogous thereto. arbitration. This may also be applied for ICA conducted
outside the Philippines if they are adopted as the rules of
Arbitration and court action are not incompatible. They procedure by the parties in the exercise of their privileges
may proceed at the same time and independently of each of party-‐autonomy and self-‐determination.
other. They may even complement each other.
The provisions of the IRR on ICA are default rules,
As a rule, only those parties who have agreed to submit a meaning they are applicable only in the absence or in
controversy to arbitration may be compelled to submit to default of applicable provisions contained in:
arbitration, including their heirs and assignees. However, 1. An agreement in force between the Philippines
in a jurisprudence, the SC held that corporate and other state or states; and
representatives may be compelled to submit to 2. An agreement between the parties on the
arbitration proceedings pursuant to a contract entered applicable rules.
into by a corporation they represent if there are
allegations of bad faith or malice in their acts warranting RULES OF INTERPRETATION
the piercing of the veil of corporate fiction. 1. Interpretation of the ADR Act
-‐ Shall have due regard to the policy of the law
favoring arbitration.

2. Interpretation of the Model Law APPOINTING AUTHORITY IN ICA
-‐ Concepts and principles under the Model Law The appointing authority in an ICA is the person or
should be understood in the light of their institution named in the arbitration agreement as such, or
international usage rather than their ordinary the regular institution. The appointing authority in an ICA
domestic or international usage. has the following functions:
3. Interpretation of the IRR 1. Take the necessary measures to appoint an
arbitrator
RULES ON RECEIPT OF WRITTEN COMMUNICATIONS 2. Decide on the challenge against an arbitrator if
IN ICA the arbitral tribunal rejects the challenge
In default of such rules, communication is deemed 3. Consider the qualifications of an arbitrator.
received:
1. If it is delivered to the addressee personally or at The default appointing authority in an ad hoc arbitration
his place of business, habitual residence or is the IBP National President or his representative.
mailing address; or
2. If there is none, if it is delivered by registered ARBITRATORS AND ARBITRAL TRIBUNALS IN ICA
letter or any other means which provide a record In line with the principle of party autonomy, the parties to
of the attempt to deliver it, to the last known an ICA are free to determine the number of their
place of business, habitual residence or mailing arbitrators and the procedure for their appointment. The
address. default number of arbitrators is 3. The default procedure
Written communication is deemed received on the day it for the appointment of arbitrators is:
is delivered and not on the day the mail is posted with the 1. In an arbitration with 3 arbitrators, each party
post office. shall appoint 1 arbitrator, and both appointed
arbitrators shall appoint the 3rd arbitrator, failing
WAIVER OF THE RIGHT TO OBJECT IN ICA which the appointment shall be made by the
Objections to non-‐compliance with the rules or any appointing authority.
requirement under the arbitration agreement must be 2. In an arbitration with a sole arbitrator, the
raised without undue delay or within the time prescribed arbitrator shall be appointed, upon the request of
therefor, failing which, the right to object is deemed the party, by the appointing authority.
waived. This rule is based on the equitable doctrine of
estoppel. The appointing authority shall consider the ff. factors in
the appointment of arbitrators:
CONFIDENTIALITY IN ICA 1. Qualifications required by the agreement of the
The proceedings, records, evidence, and the arbitral parties;
award in an ICA are confidential and shall not be 2. Considerations as are likely to secure the
disclosed except: appointment of an independent and impartial
1. With the consent of the parties; or arbitrator; and
2. For the limited purpose of disclosing to the court 3. In the case of sole or 3rd arbitrators, the
relevant documents in cases where resort to the advisability of appointing an arbitrator of a
court is allowed. nationality other than those of the parties (to
avoid bias)
DUE PROCESS IN ICA
The parties shall be treated equally and shall be given full If any party is not satisfied with the appointment, he may
opportunity to present their sides. The essence of due file a petition in court challenging the appointment of
process lies in the reasonable opportunity to be heard. arbitrators.

PLACE OR VENUE OF ICA Grounds for Challenge of an Arbitrator in ICA
-‐Shall be determined by the parties. An arbitrator may be challenged only if circumstances
-‐The default place of arbitration shall be in Metro Manila exist that give rise to a justifiable doubt as to his:
unless the arbitral tribunal decides on a different place of 1. Impartiality or independence; or
arbitration. 2. Possession of the qualifications agreed upon by
the parties.
COMMENCEMENT OF ICA PROCEEDINGS
-‐To be determined by the parties. A party who appointed an arbitrator shall not be allowed
-‐The default date of commencement of arbitration is the to challenge and arbitrator. This rule is grounded on
date on which a request for that dispute to be referred to estoppel. However, estoppel does not apply where the act
arbitration is received by the respondent. of appointing was performed without the knowledge.

LANGUAGE OF ICA Procedure for the Challenge in ICA
-‐Determined by the parties The Default procedure:
-‐The default language is English. 1. The challenging party shall send a written
statement of the reasons for the challenge to the


arbitral tribunal within 15 days after becoming ruling for review by the RTC within 30 days form receipt
aware of the circumstance constituting the of the ruling, and the decision of the court therein shall be
ground for challenge. Thereafter, the arbitral immediately executor and not be subject to a motion for
tribunal shall decide the challenge. reconsideration or appeal.
2. If the challenge before the arbitral tribunal is not
successful, the challenging party may request the If the arbitral tribunal defers the resolution of the
appointing authority within 30 days from notice jurisdictional issue which will be resolved as part of the
of the decision rejecting the challenge, to decide arbitral award, the order of deferment is not susceptible
the challenge, which decision shall be of judicial relief.
immediately executor, and not be subject to a
motion for consideration or appeal. Jurisdiction Over the Parties
The jurisdiction of an arbitral tribunal over the person of
Procedure in Case the Arbitrator Fails to Act in ICA the parties in an arbitration is conferred by the consent of
If an arbitrator in an ICA becomes de jure or de facto the parties to submit to arbitration. This consent may be
unable to perform his functions or fails to act without contained either in an agreement to submit to arbitration
undue delay, his mandate terminates: (pre-‐causal) which is entered into at the time of the
1. If he withdraws; or execution of an arbitration agreement or a contract which
2. If the parties agree on the termination. includes an arbitration clause, or in a submission
agreement (present causal) between parties who do not
JURISDICATION OF ARBITRAL TRIBUNAL IN ICA have an arbitration agreement or a contract with an
Jurisdiction is the right to act or the power and authority arbitration clause but who nonetheless agree to submit an
to hear and determine a cause. In the case of arbitral existing dispute or controversy to arbitration.
tribunal, it is the authority by virtue of which it can
resolve disputes in an arbitration proceeding by rending INTERIM MEASURES IN ICA
an award thereon. 1. Request shall be in writing transmitted by
reasonable means to the arbitral tribunal and the
Jurisdiction over the Subject Matter adverse party
-‐Conferred by law. 2. Relief may be granted in order to prevent
-‐There are 2 instances when a court, quasi-‐judicial agency irreparable loss
or arbitral tribunal acts without jurisdiction: 3. Grant of interim measures may be conditioned
1. When there is lack of jurisdiction; upon the provision of security
-‐ Challenge should be raised not later than the 4. The order either granting or denying the request
submission of the statement of defense in the for interim measures shall be binding upon the
answer or in a motion to dismiss, otherwise, parties
the objection is deemed waived. 5. A party who refuses to comply with the order for
2. When there is excess of jurisdiction. an interim measure shall be liable for damages
-‐ A Party may raise the objection as soon as the resulting from non-‐compliance
excess of jurisdiction over a matter alleged to 6. Interim measure may be requested from the
be beyond the scope of its authority becomes courts in accordance with the Special Rules of
apparent; otherwise, the objection will be Court on ADR.
deemed waived unless the delay is valid.
LEGAL REPRESENTATION IN ICA
Judicial Review of Jurisdictional Issue In an ICA conducted in the PH, a party may be
The arbitral award if an arbitral tribunal which does not represented by a person of his choice even if a non-‐
have jurisdiction over the subject matter is null and void lawyer, but he shall not be authorized to appear as
ab initio unless there is a waiver of the absence of counsel in any PH court or any quasi-‐judicial body even if
jurisdiction. such appearance is in relation to the arbitration in which
he appears.
The arbitral tribunal whose acts are challenged for lack or
excess of jurisdiction may either: RULES OF PROCEDURE IN ICA
1. Consider the challenge as a preliminary question Determination of Rules of Procedure
or a threshold issue and render a ruling thereon General Rule: the parties in an ICA are free to determine
before conducting the arbitration, or the rules that will govern their arbitration proceedings.
2. Defer the resolution thereof until the rendition of In default thereof: the arbitral tribunal shall apply the
the arbitral award and the resolution of the UNCITRAL Arbitration Rules.
jurisdictional issue shall form part thereof
especially in instances when the jurisdictional The procedure in ICA in default of an agreement of the
challenge does not appear to be indubitable. parties is as follows:
1. Statement of Claims
If the arbitral tribunal renders a preliminary ruling on the
jurisdictional issue, an aggrieved party may elevate the


-‐ The claimant shall state the facts supporting 1. The petitioner furnishes proof that there was:
his claim, the issues and relief or remedy a. Defect in the Arbitration Agreement
sought b. Violation of Due process
2. Statement of Defenses c. Lack or excess of jurisdiction on the part
3. Default of the Parties of the arbitral tribunal
-‐ Default of the claimant for failure to d. The arbitration agreement was violated
communicate his statement of claims results 2. The court finds that:
in the termination of the proceedings. a. The subject of the dispute is not capable
-‐ The default of the respondent to communicate of settlement under the laws of the RP
his statement of defenses shall not terminate b. The award is in conflict with public
the proceedings and, instead, it shall proceed policy of the PH.
without such failure being considered as an
admission of the claimant’s allegations. Time for Filing the Petition for Setting Aside
-‐ Failure of any party to appear during the Petition for setting aside must be filed within 3 months
hearings, or to produce documents, amounts from the date on which the party making that application
to a waiver thereof and the arbitral tribunal received the award, or from the date on which a request
shall render an award on the basis of evidence for correction, interpretation or additional award has
submitted to it. been disposed of by the arbitral tribunal.
4. Amendment of Claims or defenses
5. Hearings RECOGNITION AND ENFORCEMENT OF ICA AND
-‐ In the conduct of hearings, the arbitral tribunal FOREIGN ARBITRAL AWARDS
can employ the following processes in taking 1. Recognition-‐ means by which the PH court gives
evidence: legal acknowledgement to a foreign arbitral
a) Court Assistance in taking evidence award and confers upon it the capacity to be
b) Subpoena enforced under PH law through PH legal
c) Expert processes
6. Conclusion/Closure 2. Confirmation-‐ Judicial affirmation of a domestic
-‐ May be concluded in either of 2 ways: arbitral award.
a) By an award or settlement 3. Enforcement-‐ the execution and implementation
b) Termination of the foreign arbitral award through PH legal
processes.
COSTS IN ICA
1. Fees of the arbitral tribunal Jurisdiction, Venue and Nature of Proceedings
2. Travel and other expenses Jurisdiction over proceedings for the recognition and
3. Costs of Expert Advise enforcement of ICA and foreign arbitral awards, is vested
4. Travel and other expenses of witnesses by the ADR Act on the RTC.
5. Costs for legal representation and assistance
6. Fees and expenses of the appointing authority. The venue of the proceedings shall be:
In principle, the cost shall be borne by the unsuccessful 1. Where the arbitration proceedings are conducted
party, but the Arbitral tribunal may apportion the costs 2. Where the asset to be attached or levied upon, or
among the parties if reasonable under the circumstances the act to be enjoined, is located
of the case. 3. Where any of the parties to the dispute resides or
has his place of business
CORRECTION AND INTERPRETATION OF ICA AWARD 4. In the NCR, at the option of the applicant.
An arbitral award may be amended in any of the following
manners: GROUNDS FOR REFUSING RECOGNITION AND
1. Agreement of the Parties PROCEDURE FOR RECOGNITION OF CONVENTION AS-‐
2. Quantification of the costs and the determination IN CONVENTION AWARDS
of the party liable therefor, or the division thereof In general, the conditions and requisites for the
between the parties recognition and enforcement of foreign judgments in the
3. Correction of typographical and similar errors PH are:
initiated by a party 1. Proof of foreign judgment
4. Correction of a typographical error initiated by 2. The judgment must be on a civil or commercial
the arbitral tribunal matter
5. Interpretation of the award 3. There must be no lack of jurisdiction, no want of
6. Additional Award notice, no collusion, no fraud, no clear mistake of
Only arbitral tribunal may correct an ICA award. law or fact
4. The judgment must not contravene a sound and
SETTING ASIDE AN ICA AWARD established public policy of the forum
The court may set aside an ICA Arbitral Award provided 5. The judgment must be res judicata in the state
that: that rendered it.


-‐ Convention Award-‐ is a foreign arbitral award PLACE OR VENUE OF ARBITRATION
made in a state which is a party to the new york -‐To be determined by the parties
convention. Its recognition and enforcement shall -‐If there is no such agreement, the arbitration shall be
be governed by the New York Convention as conducted in Metro Manila, unless the arbitral tribunal
implemented by the IRR. shall decide on a different place taking into account the
-‐ Non-‐convention Award-‐ is a foreign arbitral circumstances of the case and convenience of the parties.
award made in a state which is not a party to the
New York Convention. It cannot be recognized or LANGUAGE
enforced under the ADR Act of 2004 but it may be -‐Default language in domestic arbitration shall be Filipino
deemed as a presumptive evidence of right as or English.
between the parties in accordance with sec 48,
rule 39 of the 1997 Rules of Civil Procedure CONFIDENTIALITY
-‐ As-‐In Convention Award-‐ one which is made in a GR: Confidential Information are privileged and shall not
state which is not a party to the New York be published
Convention but which, by reason of comity and XPN: 1. With the consent of the parties
reciprocity, may be recognized and enforced as if 2. for the limited purpose of disclosing to the court
it is a convention award. relevant documents where resort to court is allowed.

Grounds for Refusing Recognition RULES ON RECEIPT OF WRITTEN COMMUNICATIONS
-‐Similar to the grounds for the setting aside of an Written communications among the parties and the
arbitral award in an ICA (refer to page 9) arbitrators shall be delivered personally, by registered
mail or courier service, and shall be deemed to be
Procedure for Recognition of Convention and As-‐in received on the date it is delivered at the addressee’s
Convention Awards address of record, place of business, residence or last
1. Filing of Application known address.
-‐ shall filed with the RTC the original or duly
authenticated copy of the award and the Use of electronic mail, facsimile transmission or other
original arbitration agreement. electronic means is permitted as long as there is a record
2. Recognition of the sending and receipt of the communication at the
3. Consolidation/concurrent hearings recipient’s mail box, and such shall be deemed to have
4. Rejection/suspension been received on the same date of its transmittal.
5. Appeals
WAIVER OF OBJECTIONS
LEGAL EFFECTS OF NON-‐CONVENTION AWARDS A party may be estopped from questioning non-‐
A non-‐convention award which does not qualify as an as-‐ compliance or is deemed to have waived his objection
in convention award is either “conclusive upon the title of thereto if he fails to raise the objection without delay or
a thing” or, at the best, is a “presumptive evidence of a within the time prescribed therefor (30 days if no period
right as between the parties and their successors in is prescribed), provided he knows of such non-‐
interest by subsequent title,” provided there is no want of compliance.
jurisdiction, no want of notice, no collusion, no fraud and
no clear mistake of law. EXTENT OF COURT INTERVENTION
GR: No court shall intervene
CHAPTER 6 XPN: Instances allowed by the Arbitration Law, ADR Act
DOMESTIC ARBITRATION and Special ADR Rules
a) 30 days having elapsed from receipt of the
DOMESTIC ARBITRATION request for arbitration, the appointing
Parties’ place of business: authority fails to perform functions imposed
Place of arbitration: under Art. 5.10(c and d), 5.11, 5.13
Place where a substantial part of the
obligation is to be performed: Located In the PH REPRESENTATION
Place where the subject matter of A party may appear by himself or be represented or
the dispute is mostly connected: assisted by a person of his choice, provided that such
representative, unless admitted to the practice of law in
DISPUTES COVERED BY RULES ON DOMESTIC the PH, shall not be authorized to appear as counsel in
ARBITRATION any PH court or quasi-‐judicial body. A party desiring to be
The provisions and rules on domestic arbitration cover represented by a counsel shall notify the other party of
both commercial and non-‐commercial disputes provided such intention at least 5 days prior to the hearing.
they are susceptible of arbitration and do not fall within
the exclusive original arbitral jurisdiction of quasi-‐judicial ARBITRATION AGREEMENT
agencies.


The arbitration agreement must satisfy the essential 3. He has personal bias which might prejudice the
requisites of a valid contract. It must be in writing and right of any party to a fair and impartial award;
subscribed by the party sought to be charged, or by his 4. He has been selected to act as champion or to
lawful agent. advocate a party’s cause.

The consent to arbitrate can either be a pre-‐causal Procedure for the Appointment of Arbitrators
consent (agreement to submit to arbitration) such as Parties in a Domestic Arbitration are free to agree on the
when the parties agree in a contract to settle by procedure for the appointment of arbitrators except that,
arbitration a controversy that will arise between them; or in order to prevent undue advantage, an agreement or
a present causal consent (submission agreement) such as clause giving a party the power to choose more
when the controversy already exists between the parties arbitrators than the other is void.
at the time of the submission to arbitration. The
submission and contract shall be valid, enforceable and [skipped rest of chapter 6, stopped at page 124 of the
irrevocable except upon grounds provided by law for the book of Robeniol]
revocation of contracts.

The arbitration law and the IRR emphasize the incapacity
of a party. The incapacity of a party will bar the dispute to
enter into an arbitration, unless referral is made by a
general guardian or a guardian ad litem.

COMMENCEMENT OF ARBITRAL PROCEEDINGS
In general, the commencement of arbitral proceedings is
determined by the prior arbitration agreement between
the parties.

The following are the specific rules for the
commencement of domestic arbitration:
1. In an institutional arbitration where there is no
prior arbitration agreement, it is commenced in
accordance with the arbitration rules of the
institutional arbitrator.
2. In an ad hoc arbitration where there is prior
arbitration agreement, it is commenced upon the
delivery by the claimant to the respondent of a
demand for arbitration.
Where there is no prior arbitration agreement, it
is initiated by one party through a demand upon
the other to submit their dispute to arbitration,
and arbitration is deemed commenced upon the
agreement by the other party to submit the
dispute to arbitration.

ARBITRATORS AND ARBITRAL TRIBUNALS
Number of Arbitrators
GR: 3 Arbitrators for domestic arbitration
XPN: Unless the parties have agreed otherwise.

Qualifications and Disqualifications
An Arbitrator must be:
1. of legal age
2. in full enjoyment of his civil rights
3. know how to read and write.

No person shall serve as an arbitrator in any proceeding
if:
1. He is related by blood or marriage within 6th
degree to either party to the controversy;
2. He has or has had financial, fiduciary or other
interest in the controversy or cause to be
decided, or in the result of the proceeding;

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Notes by Geraldine L. Yu 10

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Dispute Resolution AUSL 2018-‐2019