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(2) The provisions of this Law, except articles 8, 9, 35 and 36, apply only if the Article 1 of the Model law adopts the territorial criterion which provides that the
place of arbitration is in the territory of this State. applicability of the law shall be within the territory of the enacting state. As
opposed to autonomy criterion, this criterion applies to foreign arbitration if the
(3) An arbitration is international if: parties to the arbitration had decided to be governed by the arbitration law of
another enacting state.
(a) the parties to an arbitration agreement have, at the time of the
conclusion of that agreement, their places of business in different States; According the working group, the territorial criterion is more widely accepted as
or compared to the autonomy criterion.
(b) one of the following places is situated outside the State in which the Exceptions to the territorial criterion:
parties have their places of business: (i) the place of arbitration if
determined in, or pursuant to, the arbitration agreement; (ii) any place a) A national court is required to refer the parties to arbitration
where a substantial part of the obligations of the commercial relationship b) A party to a foreign arbitration may apply with a national court before or
is to be performed or the place with which the subject-matter of the during arbitral proceedings for an interim measure of protection
dispute is most closely connected; or c) A prevailing party in a foreign arbitration may apply with a national court for
recognition and enforcement of a foreign award
(c) the parties have expressly agreed that the subject-matter of the
arbitration agreement relates to more than one country. d) A national court may refuse an application for recognition and enforcement
of a foreign arbitral award.
(4) For the purposes of paragraph (3) of this article:
(a) if a party has more than one place of business, the place of business is that d. Arbitrability of a Commercial Dispute and its status as being
which has the closest relationship to the arbitration agreement; “international”
(b) if a party does not have a place of business, reference is to be made to A dispute shall be considered international in the following instances:
his habitual residence.
1) The parties to an arbitration agreement have, at the time of the conclusion
(5) This Law shall not affect any other law of this State by virtue of which of that agreement, their places of business in different States; or
certain disputes may not be submitted to arbitration or may be submitted 2) One of the following places is situated outside the State in which the parties
to arbitration only according to provisions other than those of this Law. have their places of business:
a) the place of arbitration if determined in, or pursuant to, the arbitration
agreement;
a. Dual System as adopted by the Philippines
b) any place where a substantial part of the obligations of the commercial a. Written Communications
relationship is to be performed or the place with which the subject-
matter of the dispute is most closely connected; or Unless otherwise agreed by the parties:
c) the parties have expressly agreed that the subject matter of the a) any written communication is deemed to have been received if it is
arbitration agreement relates to more than one country. delivered to the addressee personally or if it is delivered at his place of
business, habitual residence or mailing address;
e. Test of internationality b) if none of these can be found after making a reasonable inquiry, a written
1. Place of business – Are the places of business of the parties in different communication is deemed to have been received if it is sent to the
states? addressee’s last-known place of business, habitual residence or mailing
2. Place of arbitration – Is the stipulated venue in a foreign state? address by registered letter or any other means which provides a record of
3. Place of performance – Is the obligation to be performed outside the place the attempt to deliver it
of business of the parties? The communication is deemed to have been received on the day it is so delivered.
4. Place of Subject Matter of Arbitration Agreement – Is the subject matter of
the arbitration agreement related to more than one state? Exceptions: communications in court proceedings.
(a) "arbitration" means any arbitration whether or not administered by a A party deems to waive his right to object if all these requisites are met:
permanent arbitral institution;
A. There is a procedural requirement that has not been complied with which is
(b) "arbitral tribunal" means a sole arbitrator or a panel of arbitrators; non-mandatory under the Model Law
B. The party knew of such compliance
(c) "court" means a body or organ of the judicial system of a State;
C. The party proceeds with arbitration without objections
(d) where a provision of this Law, except article 28, leaves the parties free to D. The party failed to state his objection within a reasonable period of time and
determine a certain issue, such freedom includes the right of the parties to in the manner provided in the law or arbitration agreement
authorize a third party, including an institution, to make that determination;
k. Extent of Court Intervention (Article 5)
(e) where a provision of this Law refers to the fact that the parties have agreed
or that they may agree or in any other way refers to an agreement of the parties, In matters governed by this Law, no court shall intervene except where so
such agreement includes any arbitration rules referred to in that agreement; provided in this Law.
(j) where a provision of this Law, other than in articles 25(a) and 32(2)(a), refers
to a claim, it also applies to a counter-claim, and where it refers to a defence, it
also applies to a defence to such counter-claim. General Rule: Courts must yield to the primary jurisdiction of the Arbitral Tribunal
Exception (When can the RTC intervene): SADR, following Section 6 of the Model
Law, provides the following:
a. Definitions
Relief on the issue of Existence, Validity, or Enforceability of the Arbitration
The term arbitration has not been defined in the Model law because according to Agreement;
the UNCITRAL Secretary General, it is already well-known and understood in many Referral to Alternative Dispute Resolution ("ADR");
jurisdictions and such definition is no longer necessary to be made part of the Interim Measures of Protection;
Model law itself. Appointment of Arbitrator;
Challenge to Appointment of Arbitrator;
i. Receipt of Written Communications (Article 3)
Termination of Mandate of Arbitrator;
(1) Unless otherwise agreed by the parties: Confirmation, Correction or Vacation of Award in Domestic Arbitration;
Recognition and Enforcement or Setting Aside of an Award in International
(a) any written communication is deemed to have been received if it is delivered Commercial Arbitration;
to the addressee personally or if it is delivered at his place of business, habitual Recognition and Enforcement of a Foreign Arbitral Award;
residence or mailing address; if none ofthese can be found after making a Confidentiality/Protective Orders; and
reasonable inquiry, a written communication is deemed to have been received Deposit and Enforcement of Mediated Settlement Agreements.
if it is sent to the addressee's last-known place of business, habitual residence Assistance in Taking Evidence;
or mailing address by registered letter or any other means which provides a Confirmation, Correction or Vacation of Award in Domestic Arbitration;
record of the attempt to deliver it; Recognition and Enforcement or Setting Aside of an Award in International
(b) the communication is deemed to have been received on the day it is so Commercial Arbitration;
delivered. Recognition and Enforcement of a Foreign Arbitral Award;
Confidentiality/Protective Orders; and
(2) The provisions of this article do not apply to communications in court Deposit and Enforcement of Mediated Settlement Agreements
proceedings.
l. Court or Other Authority for Certain Functions of Arbitration Assistance contract in subsequent correspondence, invoice or letter of credit by
and Supervision (Article 6) mentioning, for example, its credit number;
3. A contract is concluded through a broker who issues the text evidencing the
The functions referred to in articles 11(3), 11(4), 13(3), 14, 16(3) and 34(2) shall agreement of the parties including the arbitration clause, without there
be performed by ... [Each State enacting this model law specifies the court, being any direct written communications between the parties;
courts or, where referred to therein, other authority competent to perform these 4. Reference in an oral agreement to a written set of terms, which may be in
functions.] standard form, that contain an arbitration agreement.
They may be found in an arbitration clause within the contract of the parties, or (2) Where an action referred to in paragraph (1) of this article has been brought,
in a separate document. arbitral proceedings may nevertheless be commenced or continued, and an
award may be made, while the issue is pending before the court.
Forms:
1. A contract containing an arbitration clause is formed by one party sending c. Validity of Arbitration Agreement
written terms to the other, which performs its bargain under the contract
Article 8 of the UNCITRAL Model law allows the parties and the arbitral tribunal
without returning or making any other exchange in writing in relation to the
to rule and find out whether or not the arbitration agreement is null and void,
terms of the contract;
inoperative, or incapable of being performed.
2. A contract containing an arbitration clause is formed on the basis of the
contract text proposed by one party, which is not explicitly accepted in d. Applicable Law
writing by the other party, but the other party refers in writing to that
In determining whether an arbitration agreement is null and void, inoperative, or
incapable of being performed, there shall be a reference to the national law of
the particular state involved. The working group realized that it is not the call of
the forum to decide such matter. Thus, it was left to the particular states which
have adopted the Model law to determine when an agreement is null and void,
inoperative, or incapable of being performed.
e. Presumption of Arbitrability
Although the term “arbitration” has a wide and extensive meaning, it shall not
cover compulsory arbitration because such is not based on the will or
voluntariness of the parties but rather it is required by statute.
The court may take jurisdiction and resolve the preliminary question involving the
validity of an arbitration agreement. Concurrently, the arbitration may be
commenced and an award may eventually be made. Also, when a question is
brought to the court, the arbitration proceedings shall not be deemed suspended
pending the court decision on the issue raised because such dilatory tactics have
been foreseen by the working group and are thus prevented.
This is actually a serious problem the field of arbitration. This may take place when
arbitral proceedings are commenced abroad and the parties are represented by
foreign counsels and a similar action is commenced in the Philippines involving
similar parties and issues as those brought to arbitration abroad and a party is
represented by a Filipino counsel who is unaware of the arbitration proceedings
abroad. According to a report of the UNCITRAL Secretary General, “As regards the
effect of a party’s failure to invoke the arbitration agreement by way of a timely
request, that party is prevented, under Article 8, from invoking the agreement
during subsequent phases of the court proceedings.
Article 9 expresses the principle that any interim measures of protection that may
be obtained from courts under their procedural law (e.g. pre-award attachments)
are compatible with an arbitration agreement. Like article 8, this provision is
addressed to the courts of a given State, insofar as it determines their granting of
interim measures as being compatible with an arbitration agreement, irrespective
of the place of arbitration. Insofar as it declares it to be compatible with an
arbitration agreement for a party to request such measure from a court, the
provision would apply irrespective of whether the request is made to a court of
the given State or of any other country. Wherever such request may be made, it
may not be relied upon, under the Model Law, as an objection against the
existence or effect ofan arbitration agreement.