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 to develop
strategies and point you to the right direction.

COMPREHENDING THE
APPROACHES TO DISPUTE
by
RESOLUTION

MARIO E. VALDERRAMA AB, LLB, FCIARb, FHKIArb, FPIArb

CIArb Approved Tutor
CIAC Accredited Arbitrator
Member (co-opted) of the Branch Main Committee of
The Chartered Institute of Arbitrators
East Asia Branch
Contact Details
Tel No 367 4001; Telefax 362 1867
Mobile 0917 4114 594
E-mail <marval.law@gmail.com>

APPROACHES TO DISPUTE
RESOLUTION

The Negotiated Model

The Adversary Models, namely:

The Adversarial Model; and

The Inquisitorial Model

APPROACHES TO DISPUTE
RESOLUTION: NOTE

This presentation is specially focused

on the Inquisitorial Model because we
are more or less familiar with the
Negotiated Model and the Adversarial
Model.

PART I

THE NEGOTIATED MODEL

NEGOTIATED MODEL

This provides the means for settling disputes

amicably with the full and unqualified consent
of the parties.

This is prevalent in civil disputes.

This is also possible in criminal cases, in

those instances when plea bargaining is
allowed.

THE NEGOTIATED
MODEL

On the upside, this may be the best way to

settle disputes.

On the downside:

This in the end is entirely dependent on the

parties.
This mode may also violate or dilute justice
more so in those cases where the bargaining
strengths of the parties are lopsided.

PART II

THE ADVERSARY MODELS

THE ADVERSARY
MODELS

In the adversary models, the winner wins

what the loser loses in an all or nothing
outcome.

The parties are compelled to comply with the

deciding authoritys decision where appeals
are exhausted (or not allowed) even if they
were dissatisfied with it.

ADVERSARIAL &
INQUISITORIAL MODELS

In the adversarial approach, the deciding

authority is passive and relies on the
presentation of the parties.

In the inquisitorial approach, the deciding

authority is proactive and generates his own
evidence.

(Based on CIArb & PIArb Teaching Materials)

PART II-A

THE ADVERSARIAL MODEL

THE ADVERSARIAL MODEL:

FEATURES
It is self-initiated by a party who is either a
claimant, petitioner or litigant in a civil dispute
or by the state in a criminal case.
The parties have the burden of coming
forward with the evidence.
The tribunal is passive and relies on the
presentations of the parties.
NOTE: Some say that this model is also a
battle of resources.

ADVERSARIAL
PROCEEDINGS: HEARING

Party calls his witness (in arb., normally

witnesses of fact first before experts);
Witness takes his oath of affirmation;
Party ask the witness to confirm his name,
address and involvement in the subject
matter;
Direct examination or examination in chief
follows; no leading questions except on noncontroversial matters

ADVERSARIAL
PROCEEDINGS: HEARING

(CONT)
Cross examination by adverse party; leading

questions allowed;
Redirect examination (sometimes called reexamination) by proponent;
Recross examination;
Third party neutral makes his own examination,
normally restricted to clarificatories. Depending,
however, on the nature of questions asked by
the neutral, the parties may be allowed to ask
supplementary questions on the issues raised
by the neutrals questions.
Witness thereafter excused.

ADVERSARIAL
PROCEEDINGS: HEARING
NOTE:
The opening of the proceedings, intros (in
arb.), explanation of the procedure (also in
arb), opening and closing statements
(sometimes called pre-hearing and post
hearing memorials in arb) etc. are omitted
in the discussion.

Comment re Adversarial
Model

On the upside, it is said to have the

advantage in that it entails a much more
comprehensive and thorough examination of
the truth. This is, of course, conditioned on
the assumption that the contending lawyers
are well matched (more so in cross
examination skills).
Rightly or wrongly, the adversarial model
became synonymous with delay and
technicalities.

PART II-B

THE INQUISITORIAL MODEL

INQUISITORIAL MODEL:
FEATURES

Third party neutral plays an active role

instead of just being a mere referee;
Process directed by third party neutral; does
not depend on parties action; and
Lawyers role is restricted.
In short, the third party neutral generates his
own evidence. He uses his subpoena powers
to compel production of evidence and to
conduct his own investigation.

INQUISITORIAL MODEL:
NOTE

The clause the tribunal generates it own

evidence is descriptive of what the tribunal
can do.
On its own, it may decide to look into the
books of the parties, conduct ocular
inspections, require the presence of
witnesses, require the production of
documents, etc.

INQUISITORIAL MODEL:
USUAL PROCEDURE
DURING HEARING

Preliminaries

Witnesses have filed their written

statements.

Agreement on when witnesses are

available is already in place.

INQUISITORIAL MODEL:
USUAL PROCEDURE

DURING
HEARING
Initial Examination
by Third Party Neutral

Neutral calls the witness to be examined.

Witness takes usual oath or affirmation.
Neutral confirms name and address of
witness; also that the content of his
witnesss statement is true and is the
evidence witness wishes to give.

INQUISITORIAL MODEL: USUAL

PROCEDURE DURING HEARING

Initial Examination by Third Party Neutral

(cont)

Neutral ask the witness such questions as

the former considers appropriate.

NEUTRAL MAY ASK LEADING QUESTIONS.

INQUISITORIAL MODEL: USUAL

PROCEDURE DURING HEARING

Examination by Parties

Witness turned over to the parties for examination

for the usual direct (if necessary), cross, re-direct
and recross.

As a rule, proponent of the witness may not ask

leading questions. The other party may ask
leading questions.

Parties may ask witness to clarify his answers to

the questions of the third party neutral.

INQUISITORIAL MODEL: USUAL

PROCEDURE DURING HEARING

Further Questions by Third Party Neutral

After the parties were finished with their

examination, the neutral may then ask
further questions arising from the
questions asked by either party.

INQUISITORIAL MODEL: USUAL

PROCEDURE DURING HEARING

NOTE:

The discussion omitted matters pertaining

to the opening of the proceedings,
introductions, explanation of the procedure
(in arb.) the opening and closing
statements (sometimes called pre-hearing
memorials and post hearing memorials),
etc.

QUESTIONS FROM THE

TRIBUNAL

It is said that, normally, the tribunal may end

up asking about 70% of the total number of
questions directed to a witness.
In other words, the tribunal under normal
circumstances may end-up asking more
questions than the total number of questions
asked by the party representatives.

COMBINING
INQUISITORIAL

PROCEDURE
WITH
OTHERS
Note that the procedure
described
in the
previous slides may be combined with other
types of arbitration proceedings such as in
the so-called witness conferencing.

If Mr. Justice Roberto A. Abad were to have

his way, the first and second level courts will
go inquisitorial in the so-called run of the
mill cases excluding small claims.

INQUISITORIAL MODEL:
COMMENT

It is said that the advantage of the model is

that the evidence is generally confined to a
search for the truth.

The downside is that there is the tendency

that the quality of the evidence may not be
subjected to the test provided by cross
examination.

PART II B1

INQUISITORIAL MODEL IN
AGREEMENT BASED
ARBITRATION

TRIBUNAL DISCRETION TO GO
INQUISITORIAL AND ITS
LIMITATION

Model Law Art. 19

(1) Subject to the provisions of this Law, the
parties are free to agree on the procedure to
be followed by the arbitral tribunal in
conducting the proceedings.
(2) Failing such agreement, the arbitral
tribunal may, subject to the provisions of this
law, CONDUCT THE ARBITRATION IN
SUCH MANNER AS IT CONSIDERS
APPROPRIATE (Capitals mine).

TRIBUNAL DISCRETION TO GO
INQUISITORIAL AND ITS
LIMITATION
Accordingly, in agreement based
arbitration, one of the matters that should
be taken-up during the preliminary
conference is whether or to what extent
the tribunal should take the initiative in
ascertaining the facts and the law.
[Not widely known in Phl.]

OTHER LIMITATIONS

The tribunal in the exercise of its

discretion cannot contravene mandatory
provisions of law.
This is obvious as the provisions involved
are matters of public policy and therefore
needs no further explanation.
Note that institutions may also have
mandatory rules. UNCITRAL Rules 1976
has a mandatory provisions clause in Sec.
1 Article 1.2.

OTHER LIMITATIONS

The tribunal cannot exercise its discretion in

those cases where the law provides default
procedures (usually with the words failing
such agreement, subject to the agreement
between the parties, or similar phrases).
Note that institutions also have default rules.
UNCITRAL Rules 1976 has a general default
provisions clause in its Section 1 Article 1.1.
ICC RULES has several default provisions.

OTHER LIMITATIONS

The tribunal in the exercise of its discretion

must do so reasonably.
Again, another obvious limitation.

COMMENT RE ARBITRAL
DISCRETION TO GO
INQUISITORIAL

Needs strength of character

More so in Phl where there is prejudice
against the inquisitorial model.
Danger of apparent or perceived bias (so arb
must exercise caution)
Requires more preparation on part of tribunal

NOTE: Most Phl lawyers/arbs would most likely

want to veer away from it

PART II-B-2

INQUISITORIAL CHARACTERISTICS
OF CIAC ARBITRATION

CIAC RULES
In CIAC, the rule is arbitral discretion re
procedure.
Sec. 13.5. The arbitral tribunal xxx shall have
complete control over the proceedings.
(Parties have only such leeway that the
tribunal would allow them.)
So, given the strict time lines, it is adviseable,
almost mandatory given other CIAC rules, to
go inquisitorial in CIAC Arbitration.

LIMITATIONS TO THE
EXERCISE OF ARBITRAL
DISCRETION

The tribunal xxx shall at all times adopt the

most expeditious procedures for the
introduction and reception of evidence and
xxx in any case shall afford full and equal
opportunity to all parties to present relevant
evidence (see Rule 13.4).

CIAC Arbitration Procedure:

Hallmark
JUSTIFICATION:
The
hallmark of CIAC arbitration is speedy
resolution of disputes without infringing due
process requirements.
There is hereby declared to be the policy of the
State to encourage the early and expeditious
settlement of disputes in the Philippine
Construction Industry (E.O. 1008 Sec. 2,
Declaration of Policy).

CIAC RULES HAVE

INQUISITORIAL
CHARACTERISTICS

Sec. 13.3. Order of presentation. It shall be

within the discretion of the Arbitral Tribunal to
determine the order of presentation of
evidence.
Sec. 13.5 Evidence. The parties shall xxx
produce additional documents and witnesses
as the Arbitral Tribunal may deem necessary
to clear understanding of facts issues for a
judicious determination of the dispute(s).

CIAC RULES HAVE

INQUISITORIAL
CHARACTERISTICS

Sec. 13.5.1 Order to produce documentary

evidence xxx on its own initiative, the
Arbitral Tribunal may direct any person,
board, body, tribunal, or government office,
agency or instrumentality, or corporation to
produce real or documentary evidences
necessary for the proper adjudication of the
issues.

CIAC RULES HAVE

INQUISITORIAL
CHARACTERISTICS

Sec. 13.5.2. Order to give testimony. The

Arbitral Tribunal may, likewise, direct any
person to give testimony at any proceedings
for arbitration.
Others e.g. Sec. 13.10 ocular inspections;
13.14 reopening of hearings; 13.15
summations.

INADVERTENT
LIMITATION?
CIAC Rules Sec. 13.7. Examination by the
Arbitral Tribunal. The Arbitral Tribunal may
ask clarificatory questions of the witnesses at
any stage of the proceedings.
Comment: In inquisitorial proceedings, the
deciding authority generates its own
evidence. Therefore, it is not limited to asking
clarificatory questions only.
Note: See Sec. 9 of old Rules.

A BIT OF PARTY
AUTONOMY?

CIAC Rules Sec. 13.16. Submission of

memoranda or draft decision. If any or both
parties so desire, written memoranda or draft
decisions may be submitted not later than ten
(10) calendar days from termination of the
hearing or from the date of the filing of
additional documents as previously agreed
upon, whichever is later.
Sec. 13.16.1. If both parties agreed to submit
memoranda or draft decisions, the filing shall be
simultaneous.

BIBLIOGRAPHY

CIArb Teaching Manual (culled from various

sources)
PIArb Teaching Manual (culled from various
sources)
CROWTER, Harold FCIArb: An Introduction
to Arbitration, LLP Reference Publishing,
London
CIAC RULES; UNCITRAL MODEL LAW
1985; ICC Rules; UNCITRAL Rules 1976;
UNCITRAL Guidelines

WANT TO KNOW MORE?

Attend our courses and
seminars.
Contact us for schedules.
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