Philippine Institute of Arbitrators

Involved in Arbitration / ADR?

We know the different processes.
We can help you dissect and analyze them,
refine and combine them, and create hybrid
procedures to make them suitable for
particular relationships, as well as develop
strategies and point you to the right
direction.

ARBITRATION LAW IN THE PHILIPPINES

by

MARIO E. VALDERRAMA
LLB, FCIArb, FHKIArb, FPIArb
CIAC, PDRCI & WESM Accredited Arbitrator
Member (co-opted) of the East Asia Branch Main
Committee of
The Chartered Institute of Arbitrators (CIArb)
CIArb Approved Tutor
Contact Details
Tel No 367 4001; Telefax 362 1867
Mobile 0917 411 4594
E-mail <marval.law@gmail.com>

PRELIMINARY NOTES
Classification of Arbitration
For our purposes, and with respect to
the applicable law, let us classify
arbitration into:
Foreign
Local
Note that what is local to us is foreign in
so far as other jurisdictions are
concerned.

PRELIMINARY NOTES
Another Classification of Arbitration
Foreign Seat of arbitration (or place of arbitration
designated by parties) is in a jurisdiction other than
the Philippines. Applicable law of the arbitration is
usually the law of that jurisdiction.
Enforcement in the Philippines of foreign arbitral
awards is governed by the New York Convention of
1958 if from a convention country. See R.A. 9285
Sec. 43 for awards from a non-convention country.

PRELIMINARY NOTES
Another Classification of Arbitration
Local Seat of arbitration is the Philippines. Philippine
law is the governing law of the arbitration.
Domestic No foreign element. This is defined in the
negative. Applicable law is R.A. 876 and Civil Code
Title XIV as amended / modified by R.A. 9285.
International With foreign element (focus on place
of business/performance/connection rather than on
nationality; also agreement). See definition in the
Model Law. The governing law is the UNCITRAL Model
Law as modified by R.A. 9285.

HISTORICAL PERSPECTIVE
Arbitration pre-dates Governments and Courts
Process is based on contractual rights, the contract
principle of party autonomy or the will of the parties,
expressed as freedom of contract in common law
legal systems. People enter into contracts even
before the institution of Governments.
The origin of arbitration is lost in obscurity. It is not
known at what time or place man first decided to
submit to his chief or to his friends for a decision and
a settlement with his adversary, instead of resorting
to violence and self-help, or to the public legal
machinery available. (Earl S. Wolaver: The Historical
Background of Commercial Abitration, University of
Pennsylvania Law Review, Vol. 32, No. 2, Dec., 1934)

HISTORICAL PERSPECTIVE
Period of Hostility
During the 19th century, the reaction of
Courts to arbitration was one of hostility
Courts in the U.S. nevertheless enforced
arbitral awards

HISTORICAL PERSPECTIVE: Period of Hostility

U.S. Courts enforced awards:
x x x arbitrators are judges chosen by the parties to
decide the matters submitted to them, finally and
without appeal, and if an award is within the
submission and it contains the honest decision of the
arbitrators, after a full and fair hearing of the parties,
a court of equity will not set it aside for error either of
law or fact. A contrary course would be a substitution
of the judgment of the court for that of the judges
chosen by the parties, and would make the award the
commencement and not the end of litigation.
(Burchell v. Marsh, 58 U.S. 344, 15 L.Ed. 96 [1854])

HISTORICAL PERSPECTIVE: Period of Hostility

The
attack
was
directed
against
arbitration
agreements. U.S. Courts denigrated arbitrators as
possibly untrained individuals and viewed arbitration
as providing makeshift justice:
x x x When x x x courts are asked to x x x compel
the parties to appoint arbitrators whose award shall
be final, they necessarily pause to consider whether
such tribunals possess adequate means of giving
redress, and whether they have a right to compel a
reluctant party to submit to such a tribunal, and to
close against him the doors of the common courts of
justice, provided by the government to protect rights
and to redress wrongs. (Tobey v. County of Bristol,
23 F.Cas. 11313, 1320-21) (C.C.D. Mass. 1845) (no.
14,065).

HISTORICAL PERSPECTIVE: Period of Hostility

Another reason, given in the U.K., was financial:
They had great jealousy of arbitrations whereby
Westminster Hall was robbed of those cases which
came not into Kings Bench, nor the Common Pleas,
nor the Exchequer. Therefore they said that it was
contrary to the policy of the law to do so. (Glass v.
Kidder Peabody and Co., Inc., 4th Cir. May 22, 1997,
Docket No. 91.1756, citing cases in tracing the history
of court involvement in arbitration.)

HISTORICAL PERSPECTIVE: Period of Hostility

Local court mirrored action of foreign courts:
Agreements to refer matters in dispute to arbitration
have been regarded generally as attempts to oust the
jurisdiction of the court, and are not enforced x x x
This seems to be the general rule in the United
States, and we understand that in the civil law it is
also the rule that, where there is a stipulation that all
matters in dispute are to be referred to arbitrators
and to them alone, such stipulation is contrary to
public policy. (Rudolf Wahl v. Donaldson Sim & Co.,
G.R. No. 1875, September 9, 1905)

HISTORICAL PERSPECTIVE
Initial law was directed against judicial hostility and
not against problems of the judiciary. The purpose of
the U.S. Federal Arbitration Act of 1925:
The FAA was designed to overrule the judiciarys
long-standing refusal to enforce agreements to
arbitrate x x x and to place such agreements upon
the same footing as other contracts (Volt Information
Sciences, Inc. v. Board of Trustees of Leland Standord
Junior University, 489 U.S. 468, 109 S. Ct. 1248, 103
L. Ed. 2d 488 (1989)).

HISTORICAL PERSPECTIVE: Initial Law

x x x [t]he FAA x x x simply requires courts to enforce
privately negotiated agreements to arbitrate, like
other contracts, in accordance with their terms x x x
(Volt Info. Sciences, Inc., supra).
U.S. Supreme Court rejected the view that the x x x
[O]verriding goal of the FAA was to provoke the
expeditious resolution of claims (Dean Witter
Reynolds, Inc. v. Byrd, 470 U.S. 213, 105 S. Ct. 1238,
84 L.Ed.2d 158 (1985))

HISTORICAL PERSPECTIVE: Initial Law (Phl.)

Philippine R.A. 876 patterned after FAA 1925
Local Court, however, posited that it enforced
arbitration agreements even before R.A. 876 (see B.F.
Corporation v. Court of Appeals, 288 SCRA 267
[1997])
[Note: The Philippines was under U.S. Rule when FAA
1925 was passed.)

HISTORICAL PERSPECTIVE: Initial Law (Phl.)

Local Court nevertheless revived the

attack against arbitration by focusing on
the presence of third parties in litigation.

HISTORICAL PERSPECTIVE: Initial Law

Comparative Decisions Re Involvement of Third Parties
In the U.S.
Under the Arbitration Act, an arbitration agreement
must be enforced notwithstanding the presence of
other persons who are parties to the underlying
dispute but not to the arbitration agreement. (Moses
H. Cone Memorial Hosp. v. Mercury Construction Co.,
460 U.S. 1, 103 S. Ct. 9217, 74 L. Ed. 2d 765 (1983).

HISTORICAL PERSPECTIVE: Initial Law

Comparative Decisions Re Involvement of Third Parties
In the Philippines:
IN recognizing the right of the contracting parties to
arbitrate or to compel arbitration, the splitting of the
proceedings to arbitration as to some of the parties on one
hand and trial for the others on the other hand, or the
suspension of trial pending arbitration between some of the
parties, should not be allowed as it would, in effect, result
in multiplicity of suits, duplicitous procedure and
unnecessary delay. (Salas v. Laperal Realty Corp., G.R. No.
135362, December 13, 1999).

Salas was the predecessor of the rulings in Del Monte v. CA,

G.R. No. 136154 and then in Agan, Jr. v. PIATCO, infra).

HISTORICAL PERSPECTIVE
Second Wave of Laws Directed Against Judicial Intervention
Recent amendments to arbitration laws reveal a trend in
favor of limiting and clearly defining court involvement in
international commercial arbitration x x x [T]he parties to
an arbitration agreement make a conscious decision to
exclude court jurisdiction and prefer the finality and
expediency of the arbitral process.
xxx
x x x Protecting the arbitral process from unpredictable or
disruptive court interference is essential to parties who
choose
arbitration (in
particular
foreign
parties).
(Explanatory Note by the UNCITRAL Secretariat on the
Model Law).

HISTORICAL PERSPECTIVE: Second Wave of Laws

Model Law Limits Judicial Intervention

Drew a red line: Courts cannot intervene except in

cases authorized by the law (Art. 5)

Initiation/pendency of judicial proceedings not a

ground to stop arbitration proceedings (Art. 8.2.)

Enumerated exhaustive grounds of challenge of

awards; does not permit a merits review of awards,
modifications or changes except insubstantial ones
(Art. 34)

HISTORICAL PERSPECTIVE: Second Wave of Laws

Model Law Limits Judicial Intervention

Institution of appointing authority (Arts. 6, 11.3) will

enable parties to proceed to arbitration without first
going to court, even in case of recalcitrance by a
party

Introduction
of
the
concept
of
kompetenz
kompentenz (Art. 16) has the effect of requiring
parties to go to the arbitral tribunal first before going
to court

Introduction of the concept of autonomy of the

arbitration agreement (Art. 16.1) will prevent indirect
attacks (i.e. attacking the validity of the main
contract) against the arbitration agreement.

HISTORICAL PERSPECTIVE
Emerging Concept: A-National Arbitration
The
theory
underlying
a-national
arbitration provides that transborder
commercial transactions are completely
outside the regulatory reach of national
laws and national judicial authority. X x x
In effect, the transborder arbitral process
is, de facto, an autonomous and selfregulating
international
system
of
adjudication. (Thomas E. Carbonneau:
Cases and Materials on The Law and
Practice of Arbitration, Revised Third
Edition I pp. 32 33).

HISTORICAL PERSPECTIVE

Emerging
Concept:
Arbitration

A-National

This absolute hands-off approach

deprives the courts at the situs of
the ability to set aside awards
procured by corruption and other
undue means. (Carbonneau on
page 37)

HISTORICAL PERSPECTIVE
Sidelight: The Challenge of A-National Arbitration

Adherents of the seat theory viewed a-national

arbitration as a myth

Adherents of a-national arbitration replied that in the

long run the seat theory cannot withstand the
challenge of a-national arbitration
Note: Carbonneau claimed that France was one of the
first jurisdictions to recognize and implement the
concept of a-national arbitration. (on p. 36).
Switzerland, Tunisia, Belgium and Sweden are known
to have passed arbitration laws allowing foreign
parties to stipulate that the jurisdictions local courts
cannot supervise the arbitration.

The Law Before R.A. 9285

Let us not bother with arbitration as

provided for in the Ley de Enjuiciamente
Civil, the Spanish Law on Civil
Procedure, as the law was repealed even
before anyone here was born.
Suffice it to say that arbitration was
closer to arbitration as understood in its
traditional concept, compared to the
arbitration in the laws before R.A. 9285.

The Law Before R.A. 9285

Applicable Law: Antecedents to R.A. 9285

Statutory arbitrations are governed by the
law that created them (this is off-topic)
Title XIV of the New Civil Code on Compromises
and Arbitrations (from Arts. 2028 to 2046) and
Republic Act 876 (circa 1953) used to govern
consensual arbitration
On enforcement of foreign arbitral awards, the
country acceded to the New York Convention

of 1958 on June 7, 1967.

The Law Before R.A. 9285

Old Applicable
amendment:

Law:

R.A.

876

before

its

Patterned (not copied from) after the U.S.

Federal Arbitration Law of 1925 (or FAA
1925)
Operates under the federal (or judicial)
pre-emption doctrine: Courts rule first on
the validity, workability and enforceability
of
arbitration
agreements
before
surrendering their jurisdiction to arbitral
bodies.

The Federal (Judicial) Pre-Emption Doctrine

Before a hesitant party may be compelled to
arbitrate, the court first decides whether the
parties entered into a valid arbitration
agreement and, if so, whether that agreement
covers the submitted dispute, because those
issues involve an interpretation of the very
foundation for the surrender of judicial rights
to private justice practices (see Carbonneau
at pages 131-132).
This doctrine is reflected in FAA Sec. 3 and
R.A. 876 Sec. 6.

Federal Pre-Emption Doctrine

Jurisdictions who follow this rule are
known to intervene in arbitrations
even if the designated seat were
elsewhere as long as there are factors
connecting the jurisdiction with the
arbitration,
e.g.,
place
of
implementation
of
the
contract,
citizenship or domicile of at least one
of the parties, applicable law, place of
perfection of the contract, etc.

Federal Pre-Emption Doctrine in the U.S.

U.S. Court modified its stance after the U.S.
accession to the New York Convention:
A parochial refusal by courts of one country to
enforce an international arbitration agreement x x
x would invite unseemly and mutually destructive
jockeying by the parties. x x x it is not
inconceivable that if Scherk had anticipated that
Alberto-Culver would be able in this country to
enjoin resort to arbitration he might have sought
an order in France or some other country enjoining
Alberto-Culver from proceeding with its litigation
in the United States. (Scherk v. Alberto-Culver
Co., 417 U.S. 506, 94 S. Ct. 2449, 41 L. Ed. 2d 270,
rehearing denied, 419 U.S. 885, 95 S. Ct. 157
(1974))

Federal Pre-Emption Doctrine in the U.S.

The Scherk Court was nevertheless
ambivalent in recognizing the primacy of
the seat court, thus:
Whatever recognition the courts of this
country might ultimately have granted
to the order of the foreign court, the
dicey atmosphere of such a legal nomans-land would surely damage the
fabric of international commerce and
trade, and imperil the willingness and
ability of businessmen to enter into
international commercial agreements.

Federal Pre-Emption Doctrine in the U.S.

Thus, in a later case, Mitsubishi Motors Corp v Soler

Chrysler-Plymouth, 473 U.S. 614, 105 S.Ct. 3746, 87L.
Ed. 2 d 444 (1985), the US Court allowed the arbitration
to proceed notwithstanding public policy issues:
As international trade has expanded in recent decades,
so too has the use of international arbitration x x x
[n]ational courts will need to shake off the old
juridical hostility to arbitration x x x and their customary
and understandable unwillingness to cede jurisdiction of
a claim arising under domestic law to a foreign or
transnational tribunal. To this extent x x x it will be
necessary for national courts to subordinate domestic
notions of arbitrability to the international policy
favoring commercial arbitration.

Federal Pre-Emption Doctrine in the U.S.

The Mitsubishi Court instead emphasized the role
of an enforcement court, thus:
Having permitted the arbitration to go forward,
the national courts of the United States will have
the opportunity at the award-enforcement stage to
ensure that the legitimate interest in the
enforcement of the antitrust laws has been
addressed. The Convention reserves to each
signatory country the right to refuse enforcement
of an award where the recognition or enforcement
of the award would be contrary to the public policy
of that country.

Federal Pre-Emption Doctrine in the Philippines

AGAN, JR. VS. PHILIPPINE INTL. AIR TERMINALS CO.,

INC., G.R. No. 155001, May 5, 2003, 402 SCRA 612
The Court refused to allow the parties to the arbitration
agreement to settle the cases by arbitration as there
are certain issues involving non-parties to the PIATCO
Contracts which the arbitral tribunal will not be
equipped to resolve.
NOTE: The ground for refusal was criticized. The
decision in the therein cited case, Del Monte Corporation
vs. C.A., was dubbed by a local lawyer as a step
backward to the stone age of arbitration. And the result
was embarrassing.

Old Applicable Law

Re: New York Convention of 1958 before R.A.
9285
No implementing legislation
No implementing rule of court
Convention obliges signatory states not only to
enforce international arbitral awards but also
arbitration agreements.

Note effect on the federal pre-emption

doctrine. See Scherk v. Alberto-Culver,
supra.

Recent Development: Republic Act No. 9285

Notes:
The Supreme Court finally promulgated the
Special Rules of Court on Alternative Dispute
Resolution. It became effective on 30 October
2009.
The Department of Justice subsequently released
the IRR on R.A. 9285. It was approved on 4
December 2009.

Development: Republic Act No. 9285

Domestic Arbitration
Domestic Arbitration shall continue to be
governed by Republic Act No. 876 x x x.
Articles 8, 10, 11, 12, 13, 14 and 18
and 19 and 29 to 32 of the Model Law
and Section 22 to 31 of the preceding
Chapter 4 shall apply to domestic
arbitration (R.A. 9285 Secs. 32 and 33).

The Major Changes

Domestic Arbitration: Comment on Method Used
Combining two laws is difficult enough. One
may gloss over something important.
Example:
amended.

R.A.

876

Section

21

was

not

The fees of the arbitrators shall be fifty pesos

per
day unless the parties agree otherwise in
writing prior to the arbitration.

The Major Changes

WARNINGS RE R.A. SECTION 21:

The curative provision is in IRR Art. 5.46

IBP or OADR Schedule of fees. Can it,
however, supersede the law?
Special Rules is silent on the matter

RECOMMENDATION: Go institutional. But be sure

that the arbitral institution has provision on
arbitrators fees applicable in
default of
agreement between the parties.
NOTE: The known institution in the Philippines is
the Philippine Dispute Resolution Center, Inc.
(PDRCI). An emerging institution: ADR Center.

The Major Changes

Domestic Arbitration: Comment on Method
Used
Articles 8, 10, 11, 12, 13, 14, and 18 and
19 and 29 to 32 of the Model Law and
Section 22 to 31 of the preceding Chapter
4
shall apply to domestic arbitration
(R.A. 9285 Sec. 33).
Method
used
made
our
domestic
arbitration
law
very
difficult
to
understand.

The Major Changes

Domestic Arbitration: Comment on Method

Used
Method used ignored the fact that the two
laws
operate
on
different,
perhaps
incompatible, premises and ignored the
integrity and unity of R.A. 876 as one
coherent whole.

The Major Changes

Example:
R.A. 876 operates under the federal
doctrine: Court first before arbitration

pre-emption

Issues on validity, enforceability and workability of

arbitration agreement are no longer issues on
challenges against the award

The Model Law has its kompetenz kompetenz: Arbitral

tribunal first before court

Issues on validity, enforceability and workability of

arbitration agreement are issues when awards are
challenged.

R.A. 876 as amended by R.A. 9285

Parties can go to arbitration without going through
the courts
Parties can, and should, go to court to question the
validity, enforceability or workability of the
arbitration agreement; no kompetenz kompetenz
Pendency of court proceedings not a ground to
suspend arbitration
Issues on validity, enforceability and workability
of arbitration agreement are not issues during
challenge of award proceedings

Approach of Special Rules

Eliminated the remaining vestiges of

federal pre-emption doctrine in domestic
arbitration by also making kompetenz
kompetenz applicable (see Rule 2.2).
Added
the
issues
on
validity,
enforceability
and
workability
of
arbitration
agreement
as
additional
grounds to vacate domestic awards (see
Rule 11.4)

The Major Changes

International Arbitration
9285 converted the Philippines into a Model
Law country
Adoption of the Model Law on International
Commercial
Arbitration

International
Commercial arbitration shall be governed by
the Model Law on International Commercial
Arbitration (the Model Law) adopted by the
United Nations Commission on International
Trade Law on 21 June 1985 (United Nations
Document A/40/17) and recommended for
enactment by the General Assembly in
Resolution
No.
40/72
approved
on
11
December 1985, copy of which is hereto
attached as Appendix A. (Sec. 19).

The Major Changes

International Arbitration
Interpretation of Model Law. In interpreting
the Model Law, regard shall be had to its
international origin and to the need for the
uniformity of its interpretation and resort may
be made to the travaux preparatories (should
be preparatoires) and the report of the
Secretary General of the United Nations
Commission on International Trade Law dated
25
March
1985
entitled,
International
Commercial Arbitration: Analytical Commentary
on Draft Text identified by reference number
A/CN/9/264. (Sec. 20).

Re Model Law
Adopted
by
the
United
Nations
Commission on International Trade Law
(UNCITRAL) on 21 June 1985
Like other UNCITRAL Model Laws, it is
intended to promote international trade
and commerce
Covers all stages of the arbitral process
from the arbitration agreement to the
recognition and enforcement of the
arbitral award

Re Model Law

The UN recommendation for all states to

adopt it or use it as a model was intended
for
the
global
harmonization
and
modernization of arbitration legislation
NOTE: There is now a Model Law 2006, but
this was not the Model Law that we have
adopted. It was, rather, Model Law 1985.

The Major Shift

Major conceptual shift in RP: From Federal
(Judicial) Pre-Emption Doctrine to the Seat
Theory, Lex Loci Arbitri
x x x When the parties designated a particular
country as the place of arbitration whether by
happenstance, for the sake of convenience, on the
basis of personal whim, or because of the
locations neutrality in relation to the parties and
the transaction they enter that states territory
and subject themselves and the arbitration to the
sovereign authority of its laws. (Carbonneau on
page 33).

The Major Shift

Seat Theory reflected in Model Law Art. 1.
Scope of Application:
(1). This law applies to international
commercial arbitration x x x.
(2). The provisions of this Law, except
articles 8, 9, 35 and 36, apply only if the
place of arbitration is in the territory of
this State.

The Major Shift Contrast

Federal Pre-Emption Doctrine: Court in a
territorial jurisdiction has subject matter
jurisdiction if there are factors connecting
the dispute to the country involved.
Seat theory: Court in the designated seat
has primary jurisdiction; court in the
country of enforcement has secondary
jurisdiction; a court which is neither of the
two but who intervenes in an arbitration is
considered
a
court
of
eventual
enforcement.

The Major Shift

The Scherk and Mitsubishi courts

refused to concede that they were
merely
courts
of
eventual
enforcement see supra. Both
surrendered their jurisdictions to
the arbitral tribunals, not to the seat
court.

The Major Shift Contrast: Law Applicable to

Arbitration Agreement
Re
Interpretation
of
italicized
portion
in
Convention Article V.1.a) x x x the said agreement
is not valid under the law to which the parties
have subjected it or, failing any indication thereon,
under the law of the country where the award was
made.
U.S.: It is not impossible (THOUGH MOST
UNUSUAL), for the arbitration clause to be
governed by one law while the rest of the contract
is governed by another (International Trade
Centre:
Arbitration
and
Alternative Dispute
Resolution, page 92. Capitals mine).

The Major Shift Contrast: Law Applicable to

the Arbitration Agreement
Re
Interpretation
of
italicized
portion
in
Convention Article V.1.a) x x x the said agreement
is not valid under the law to which the parties
have subjected it or, failing any indication thereon,
under the law of the country where the award was
made.
Model Law Countries: It is the curial law, and not
the substantive law, that is relevant. Since the
parties opted for Switzerland as the seat, then it
follows that the curial law was also Swiss law
(Karaha
Bodas
Co
LLC
v.
Perusahaan
Pertambangan
Minyak
Gas
Bumi
Negara
[Pertamina] [No. 2] [2003] 4 HKC 488)

CONTRAST: Law Applicable To

Arbitration Agreement
Note that not all jurisdictions are
Model Law Countries. While the Model
Law operates under the seat theory
(lex loci arbitri), Non-Model Law
countries may be operating under a
different theory.

The Major Changes

Enforcement of Foreign Arbitral Awards

R.A. 9285 introduced three new rules, namely:

A foreign arbitral award shall be enforced as an

arbitral award, not a judgment of a foreign court,
even if the award were confirmed by a court in its
country of origin (Sec. 44).
The New York Convention of 1958 governs the
enforcement of foreign arbitral awards rendered
in convention countries (Sec. 42); and
The Court may, on grounds of comity and
reciprocity, recognize and enforce foreign arbitral
awards rendered in non-convention countries
(Sec. 43).

The Major Changes

Enforcement of Foreign Arbitral Awards

9285 is silent with respect to foreign
arbitral
awards
rendered
in
nonconvention countries where the concept of
comity and reciprocity would not apply. In
this situation, it is submitted that the
foreign award is still enforceable, but as
evidence of a debt or obligation and not as
an arbitral award anymore.

The Major Changes

Approach of Special Rules Re Non-Convention

Awards from Jurisdictions that neither Extend
Comity nor Reciprocity to Philippine Awards:
Rule 13.12: [T]he court may nevertheless treat
such award as a foreign judgment enforceable as
such under Rule 39 Sec 48 of the Rules of Court.
Comment: Why elevate an arbitral award in the
same category as a foreign court judgment?
Moreso as the country of origin is neither a
convention country nor a country that extends
comity and reciprocity to awards made in the
Philippines.

The Major Changes

Comment on Rule 13.12 (cont)

An arbitral award would not be integrated
into the legal system of any jurisdiction
unless and until it were confirmed by the
court in the jurisdiction involved.
Rule 13.12 would, in effect, integrate the
award as a court judgment rendered in its
country of origin.

Other Modifications in R.A. 9285 of the

Model Law/Convention

Parties to an arbitral proceeding may be

represented by a person of his choice, but
lawyers retained their more or less
exclusive rights of audience before courts
and administrative agencies (Secs. 22 and
33).
The confidentiality provision in Sec. 23,
which was also made applicable to
domestic arbitration by Sec. 33.

Modifications in R.A. 9285(cont)

Extension of the period when a party to a court

case may request a court to refer to arbitration the
parties who are bound by an arbitration
agreement up to the pre-trial stage of the
litigation (Secs. 24 and 33). [NOTE: This was
criticized.]
The meaning of appointing authority as defined
in the Model Law; presumption that if the parties
agreed to the rules of an arbitral institution then
the administering and appointing authority shall
also be the institution; and designation of the IBP
President or his duly authorized representative as
the default appointing authority in ad hoc
arbitration (Secs. 26 and 33).

Modifications in R.A. 9285(cont)

The availability of resort to the court if the

appointing authority refused to act within
thirty days from receipt of a request for the
authority to perform his/her/its functions
(Secs. 27 and 33).
The time when an arbitral tribunal is deemed
constituted Upon receipt by the parties of
the written acceptance by the third or sole
arbitrator in relation to the time when
request for interim measures of protection
may be filed with the court (Secs. 28 and 33).

Modifications in R.A. 9285(cont)

The default place of arbitration (Metro Manila)

but giving the arbitral tribunal discretion
(Secs. 30 and 33).
The default language of arbitration (English in
international arbitration; English or Filipino in
domestic arbitration) but giving the arbitral
tribunal discretion (Secs. 31 and 33).

Modifications in R.A. 9285(cont)

Designation of the proper Regional Trial Court

as
the
assisting,
supervisory
and/or
enforcement court and classifying the relevant
court proceedings as special proceedings
(Sec. 47)
Designation of the Court of Appeals as the
court with appellate jurisdiction involving
rulings of the RTC; requirement of the posting
of a bond if the loser in a decision enforcing
an award were to interpose an appeal (Sec.
46)

NOTES: PROBLEMS RE PHILIPPINE

ARBITRATION LAW
Aside from (a) the confusing state of our domestic
arbitration law and (b) the only in the
Philippines provisions, other problems arise from
the fact that our arbitration law is in several
enactments, namely the R.A. 9285, R.A. 876, the
Civil Code provisions, the UNCITRAL Model Law
1985, the New York Convention, the Special Rules
issued by the Supreme Court and the DOJs IRR.
In certain instances they do not provide the same
rules.

NOTES: PROBLEMS RE
PHILIPPINE ARBITRATION LAW
Examples of Conflicting Provisions:
R.A. 876 Sec. 24 enumerates 4 grounds to
vacate a domestic award. In contrast, Special
Rules Rule 11.4. enumerates seven (7) grounds
to vacate a domestic award.
IRR Art. 4.37 last paragraph is premised on the
proposition that local international awards are
appealable, providing that the right to appeal
may be waived. Such waiver, nevertheless, is
without prejudice to the application of the
Rules of Court Rule 65.

NOTES: PROBLEMS RE
PHILIPPINE ARBITRATION LAW
IRR Art. 4.37 last paragraph:
Any stipulation by the parties that the
arbitral tribunals award or decision shall be
final, and therefore not appealable, is valid.
Such stipulation carries with it a waiver of
the right to appeal from an arbitral award
but without prejudice to judicial review by
way of certiorari under Rule 65 of the Rules
of Court.

NOTES: PROBLEMS RE
PHILIPPINE ARBITRATION LAW
The good news is that the DOJ OADR is
now looking at the laws involved for
possible recommended amendments.
But
what
about
some
decisions
emanating from the Supreme Court that
are also causing confusion?

WANT TO KNOW MORE?

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www.philippinearbitrators.org

Philippine Institute of Arbitrators

c/o Atty. Mario E. Valderrama
Tel. No. (632) 367 4001
Telefax (632) 362 1867
E-mail: marval.law@gmail.com