You are on page 1of 5

Registered letter or any

other means which


provide a record of the
attempt to deliver it, to
the last known place of
business, habitual
residence or mailing
address.
Revised Rules of court->received
on the day it is delivered

CH 5 ICA
International
-

Place of business conclusion of the


arbitration agreement is in diff states
Place of arbitration provided in the
arbitration agreement->parties have their
places of business->outside the phil
Place where substantial part of the oblig is
to be performed or the place with which the
subject matter of the dispute is most closely
connected and in which the parties have
their place of business outside the phil
Parties have EXPRESSLY agreed that the
subject matter of the arbitration agreement
relates to more than one country

Waiver of the right to object in ICA


-

ICA
-

Domestic and international in character


conducted in the PHILIPPINES
Foreign arbitration-> outside the Phil

IRR
-

Default rules(adopted in recognition of party


autonomy and self-determination) and only
applicable in the absence of
o
Agreement in force bet. Phil and
other states
o
Agreement bet. The parties on the
applicable rules

Rules of interpretation
-

ADR act->policy of the law favoring


arbitration
Model law->international origin and need for
uniformity
IRR
o
Interpretation of the ADR act
o
Party autonomy should be
promoted
o
Freedom of the parties to
determine issues
o
Reference to an agreement of the
parties includes arbitration rules
o
Rules applicable to claims are
equally applicable to counterclaims
and those applicable to defenses
equally applicable to defenses
against counterclaims

Rules on Receipt of written communication in ICA


-

Play a vital role in ICA.


GR: receipt of communication->arbitration
agreement
o
Default:

Delivered to the
addressee personally, his
place of business, habitual
residence or mailing
address

The IRR expanded the application of the


rules on waiver to include non-compliance
w/ the rules or requirements.
Objections to non-compliance w/ the rules
under arb-agreement->raised w/o undue
delay.Otherwise deemed to be WAIVED
Rule based on estoppel-admission cannot be
denied or disproved as against the person
relying on it.
Estoppel in pais-intentionally or negligently,
induces another to believe certains facts to
exist and such other person relies and acts
on such belief in a manner that he will be
prejudiced if the forms is permitted to deny
the existence of such facts.
o
Ex:proceeding w. the arbitration
nothwithstanding the noncompliance w/ the rules or arb
agreement

Confidentiality in ICA
-

Disclosed
o
Consent of the parties
o
Limited purpose of disclosing to the
court relevant docu in cases which
resort to the court is allowed

Court may issue


protective orders to
prohibit the disclosure
where it is shown
applicant shall be
materially prejudiced

Due process in ICA


-

Parties shall be treated equally and shall be


given full opportunity to present their sides
Essence:opportuinity to be heard. EVEN if he
does not actually avail of such opportunity

Place of ICCA
-

GR: parties
o
Default:Metro manila

Arbitral tribunal decides


on a diff place of arbi

Commencement of ICA proceedings


-

Parties
o

Default:date on which a request for


that dispute to be referred to

arbitration is received by the


respondent

Language in ICA
-

Parties
o

English

Applicable law in ICA


-

Substantive law
Absence of agreement:law determined by
conflicts of law rules determined by arbitral
tribunal

Jurisdiction of Arbitral Tribunal in ICA


-

Appointing Authority in ICA


-

Make the default appointment of aribitrators


or sole arbitrator
ICAs other functions:
o
Appoint arbitrator
o
Decide on the challenge against an
arbitrator
o
Consider the quali, impartiality and
independence, advisability of
appointing arb diff nationality

Parties are free to determine the number of


their arbitrator and procedure for their
appointment(principle of party autonomy
and self-determination)
Default: 3
Any party may request the appointing
authority to take measure to appoint an
arbitrator.
o
Quali required by the agreement
o
Impartial arbitrator
o
Appointing an arbitrator of a
nationality other than those of the
parties if party not satisfied
CHALLENGE

Grounds for challenge of an arbitrator in ICA


-

Doubts about his impartiality or


independence
o
Unless have been previously
informed
o
Possession of the quali agreed
upon by the parties

If appointed arbitratorestopped

Unlessw.o the
knowledge,
actual or
constructive of
the actual facts

Procedure for the challenge in ICA


-

Agreed upon parties


Default:
Written statement reasons for challenge to
the arbitral tribunal w/in 15 days

Right to act or the power and authority to


hear and determine a case
No jurisdiction:
o
Lack of jurisdiction-power to rule on
objections to its jurisdiction such as
those raised against the existence
or vaility of the arbagreement
o
Excess of juris-beyond the scope of
its authority becomes apparent

Otherwise will be deemed


waived

Unless delay is
justified

Judicial Review of Jurisdictional Issue


-

Arbitrators and arbitral tribunals in ICA


-

If not successful; may request appointing


authority w/in 30 days
Party may question the decision of arbitrator
in Special Rules of Court on ADR

Consider the challenge as a preliminary


question and render a ruling
Defer the resolution until the rendition of
the arbitral award and the resolution of the
jurisdictional issue shall form part of.
If arb trib renders ruling elevate sa RTC 30
days

Jurisdiction over parties


-

Consent of the parties to submit to


arbitration
Consent:
o
Pre-causal consent-agreement to
submit arbit
o
Present causal consent-submission
agreement->to submit an existing
dispute or controversy to arbit

Interim Measures in ICA


-

After the arb-trib has been constituted, any


party may request measures. Written>describing the past relief
Relief granted
o
Irreparable loss
o
Security for the performance of an
oblig
o
Produce or preserve evid
o
Compel any other appropriate acts
or omissions
Order either denying or granting interim
measures BINDING upon the parties
Party who refuses to comply shall be liable
for DAMAGES from non-compliance
including all expenses and reasonable atty
fees paid
Pag BEFORE the constitution of the trib or if
constituted NO POWER to act->requested sa
court in accordance w/ Special Rules of
Court on ADR

Legal reps in ICA

Only lawyers accredited by the SC


Sa ICA, even if a non-lawyer->however will
not be authorized to appear as council in
any proceeding

ASSISTANCE to the
tribunal
6. Conclusion/closure
2 ways

Rules of Procedure in ICA


-

GR: parties are free to determine the rules


Default: UNCITRAL Arbitration Rules
1. Statement of claims.-state the facts
supporting his claim, issues and
relief or remedy sought
2. Statement of defenses-respondent
shall state his defenses
3. Default of the parties-failure to
communicate their statements of
claims
a. Claimant-termination of
the proceedings
b. Respondent-shall not
terminate. Instead,
proceed w.o such failure
being considred as an
admission of the
claimant;s allegation
4. Amendment of claims or defensesmay amend or supplement unless
arbitral tribunal considers
amendment inappropriate
5. Hearings-tribunal determine
whether oral hearings, oral argu
only or just require submission of
docu during the appropriate stages
of the proceeding.Conduct of
hearings, arb tribunal can employ
the ff processes in taking evidence:
a. Court assistance in taking
evidence
b. Subpoena-may compel the
attendance of
witnesses(subpoena ad
testificandum) and
production of
docu(subpoeja duces
tecum)
i. Trib-NO
CONTEMPT
powers>agrrieved party
must invoke
judicial
intervention to
compel
compliance w.
the subpoena
ii. Failure to complycite the refusal
party contempt
of court
c. Expert-similar to amicus
curiae or friend of the
court diff. sa former field
of specializstion is not
limited to law
-not as a expert witness
but to provide

1)Award or settlement-award shall be in


writing signed by the sole or a majority of the
arbitrators, state the date and place of arbitration
and copy delivered to each party
2)Termination
a)claimant withdraws his claim. UNLESS res
objects on the basis of a legitimate interest in
obtaining a final settlement of the dispute
b)parties agree to terminate te proceedings
c)tribunal finds that the continuation of the
proceedings has become unnecessary or
impossible
if ends by way of an award:

Correct or
interpret the
award

Set aside an
exclusive
recourse

Reserved to the
quantification of
costs and
determination of
the party liable
Arbitral award becomes final executory
-

Rendition of the award


Hearing of the quantification of the costs
and determination of the party liable
Expiration of periods for correction and
interpretation of the award
Remedies are availed of by the parties

Costs in ICA
-

Fees of the arb trib


Travel and other expenses
Costs of expert advise
Travel and other expenses of witnesses
Cost for legal rep and assistance
Fee and expenses of the appointing
authority
IN PRINCIPLE->Unsuccessful party bore the
expenses.tribunal shall be free to determine
which party shall bear such costs

Correction and Interpretation of ICA award


-

ICA award does not become executory


UNTIL lapse of the period for its amendment
o
Said period-agreement of the
parties
An arbitral award may be amended ff
manners

Quantification of the costs and the


determination of the party liable
therefor, or the division bet. The
parties.
o
Correction of typographical and
similar errors initiated by a pertymay ask for correction w/in 30 days
GR: final judgements may no longer be
modified
o
Correction of clerical errors
o
Nunc pro tunc entries which cause
no prejudice to any party
o
Void judgements
Interpretation of the award
Correction of typographical error initiated by
the arbitral tribunal-may motu proprio
correct any typographical error
Addition award-w/notice to the other pary
o

Setting aside an ICA award


-

Done by the RTC, THERE WAS:


o
Defect in arb agreement-may
incapacity yung party
o
Violation of due process-not given
proper notice
o
Lack or excess of jurisdiction on the
part of the arb tribunal-the dispute
not contemplated terms of the
submission agreement
o
Violation of the arb-agreement-not
in accordance w. the agreement
UNLESS such agreement was in
conflict w. a provision of the ADR
acts
o
Or court finds that:

Not capable of settlement

Conflict w. public policy


RTC proceedings
o
Arbitration proceedings took place
o
Asset to be attached or levied upon
or the act to be enjoined is located
o
Parties reside or his place of
business
o
NCR at the option of applicant

Foreign arbitration
Not requiring
recognition
-ICA award rendered
outside the Phil is not
and can only be
recognized or refused
recognition
-if recognized by RTC;
shall be enforced in the
same manner as final
and executory
decisions of courts of
law

Jurisdiction , Venue and Nature of Proceedings


-

3 mos from the date on which the party


making the application received the award

Recognition and Enforcement of Foreign Arbitral


Awards
-

Recognition-Phil court gives legal


acknowledgement to a foreign arbitral
award
Confirmation-judicial affirmation of a
domestic arbitral award
Enforcement-execution and implementation
of the foreign arbitral award thru Phil legal
processes.
Foreign arbitral awards-one made in a
country other than the Phil->recognition:in
order to be entitled to the enforcement in
the Phil

Jurisdiction-vested by the adr act on the rtc


Venue:
o
Conducted
o
Asset to be attached or levied upon
o
Party resides or place of business
o
NCR

Grounds for Refusing Recognition and Procedure for


Recognition of convention as-in convention awards:
-

Time for filing the the petition for setting aside


-

Domestic arb
Go throught the
process of confirmation
-no need for Phil courts
to give arbitral awards
rendered
-legal recognition under
Phil law apart from
confirmation
-ICA award rendered in
the Phil susceptible of
vacation by phil court

Proof of foreign judgement


Judgement-civil or commercial matter
No lack of jurisdiction, no want of notice, no
collusion, no fraud, no clear mistake of law
or fact
Must not contravene a sound and
established public policy of the forum
Res judicata
Slightly diff requirements recognition of
foreign arbitral awards-> depends upon the
nature of the proceedings
Convention awards-foreign arbitral award
made in a state which is a party to the New
York convention
Non-convention award-foreign arbitral
award rendered in a state which is not a
party to the NYconvention
As in convention award-not a party to the
new York convention by reason of comity
and reciprocity may be recognized and
enforced as if it is a convention award

Grounds for Refusing Recognition


-

Defect in the arb agreement


Violation of due process
Lack or excess of jurisdiction on the part of
the arb tribunal
Violation of the arb agreement
As in convention awards-additionally proof
of existence of comity and reciprocity bet.
The Phil and the non-convention state where
the arb award

Procedure for recognition of convention and As-in


Convention awards

Filing of application-file w/ RTC if not official


language->supply a duly certified
translation
Confirmation-once confirmed shall be
enforced
Consolidation/concurrent hearings; parties
and tribunal may agree
o
Consolidation of proceedings
o
Conduct of concurrent hearings
Rejection/suspension-if as-in convention
award, court may also remit the award to
the arb tribunal if the objections raised may
be cured or rectified
Appeals-decision of RTC recognizing,
enforcing, vacating or setting aside an arb
award->appealed to CA in accordance w/
the special rules on adr->require the
appealing party to post a counter-bond in
favor of the prevailing party in the amount
of the award->right to appeal may be
validly waived by the agreement or
stipulation of the parties w/o prejudice to
judicial review by certiorari under rule 65

Legal Effects of Non Convention Awards


-

UNLESS they qualify as-in convetion awards,


are not entitled to recognition or
enforcement under ADR act
May be given legal effect in the Phil under
the rules of civ pro

Effect of foreign judgements or


final orders

Final order upon a specific


thing-Conclusive upon the
title to the thing

Final order against a


person-presumptive
evidence of a right as bet.
The parties and their
successors in interest by
subsequent title
Non convention award

Conclusive upon the title


to a thing

Presumptive evidence of a
right as bet. The parties
and their successors in
interest by subsequent
title

Provided no want
of jurisdiction, no
want of notice,
no collusion, no
fraud and no
clear mistake of
fact or law.