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International Commercial Arbitration

ADR Act and Department Circular No. 98


Commercial covers any matters arising from all relationships
of a commercial nature, whether contractual or not

Rules of Interpretation
o International commercial arbitration shall be governed
by the Model Law
o The court shall have due regard to the policy of the law
in favor of arbitration and the policy of the Philippines
to actively promote party autonomy in the resolution
of disputes or the freedom of the parties to make their
own arrangement to resolve their dispute
Degree of court intervention GR: court shall not intervene;
XPN: special ruled on ADR
Statement of Claim and Defense
o Claimant State the:
Facts supporting his/her/its claim
The points at issue
Relief sought
o Respondent defenses
Arb agreement in writing, signed by the parties or in an
exchange of letters or other means of com which provide
recode of the agreement or in an exchange of statements of
claim and defense
o Arb agreement
o Arb clause in a contract
o If court has case before it, one or both parties request
not later that preliminary confe to submit it for arb
unless the arb clause is found to be null and void
Interim measures request to AT
o May be availed after constitution of AT and during the
proceedings
Constitution of AT after acceptance of arb and
notice of acceptance to the parties.
Appointment of arbitral tribunal
o Number of arbs - Parties free to agree
Failing such agreement 3

No nationality req. unless agreed by the parties


Procedure on appointment parties free to agree
Failing: If 3 each party will appoint 1, 2
appointed will appoint the 3rd. if parties failed to
appoint or 2 abs failed to appoint 3rd within 30
days from receipt of request to do so, request
appointing authority. Latters decision shall be
immediately executory, no mr or appeal. If latter
fails to act within 30 days, parties may proceed
to the court.
Sole arb appointing authority court
o Disclosure by arb of circumstances which may affect
impartiality or independence before accepting; during
proceedings
o Challenge parties may agree on the process of
challenge
Failure: w/in 15 days from consti of AT or being
aware of ground, written statement of the reason
to the AT arbitrator may withdraw or parties
may agree to terminate the arb, otherwise AT
shall decide the challenge
Grounds: justifiable doubt on impartiality
or does not possess qualification
If not successful/AT rejected the challenge
within 30 days from the notice of decision
rejecting, request appointing authority to decide
the challenge. Appointing authoritys decision
shall be immediately executory, no mr or appeal.
If latter fails to act within 30 days, parties may
proceed to the court.
Arb unable to perform duty withdraw; may be terminated by
the parties
o If there is still controversy appointing authority any
party may request
Arb who withdrew/ terminated substitution
DOCTRINE OF COMPETENCE COMPETENCE AT may
determine whether it has jurisdiction over the matter
DOCTRINE OF SEPARABILITY
o
o

Question on jurisdiction/ plea that the AT has no


jurisdiction must be raised not later that submission of
the statement of defense (answer/MD)
AT may rule as prelim question or on merits
If prelim question and ruling is it has jurisdiction
request RTC within 30 days from notice of
decision. Decision immediately exec, no mr
appeal.
Arbitral proceeding process parties free to agree
o Failing: UNCITRAL
Place of arb Parties free to agree
o Failing: Metro manila
Unless the AT having regard circumstances
including convenience of the parties should
decide on diff place
Commencement of arb proceeding date on which a request
for the dispute to be referred to arb is received by respondent
Language parties free to agree
o Failing: English
Unless otherwise specified
Hearing and Written Proceedings Arbitral tribunal whether
oral hearing shall be conducting or proceeding shall be
conducted on the basis of docs and other materials
o If actual:
Oral hearing for presentation of evidence
Oral hearing for oral arguments if no factual
issues; in case of admission
Written proceedings require parties to submit
document/memorandum of facts or of law
In which the AT will base their
findings/decision
o If party/ies request a hearing must be admitted/granted
unless there is already an agreement that there will no
longer have hearing
Default
o Unless otherwise agreed
Claimant fails to communicate statement of
claim proceedings terminated
Respondent fails to communicate statement of
defense arbitral tribunal shall continue the
o

proceedings without treating such failure in itself


as an admission of the claimants allegation
Any party fails to appear at a hearing or to
produce documentary evidence AT may
continue the proceedings and make an award on
the evidence
Expert appointed by AT may be 1 or more to report on
specific issues
Decision-making
o If panel majority.
o Question on procedure may be decided by the presiding
arbitrator if authorized by the parties or all mems of the
tribunal
Settlement if during arb, parties settle, the AT shall
terminate the proceedings, and if requested by the parties
and objected to by the arbitral tribunal, record the settlement
in form of an arb award
Award
o In writing
o Signed by the arb/s
o State reasons upon which it is based
o State its date and place of arb
o After the award is made, a copy signed by the arbs shall
be delivered to each party
Termination of proceedings
o By Final award; or
o By issuance of order for the termination of the arb
proceedings when:
Claimant withdraws claim, unless resp objects
thereto and the AT recognized a legitimate
interest on his part in obtaining a final settlement
Parties agree on the termination
AT finds the continuation of the proceedings has
for other reason become unnecessary or
impossible
Application for setting aside an exclusive recourse against arb
award RTC
o May not be made after 3 months have elapsed from the
date on which the party making that app had received

the award, if a request had been made from the date on


which that request has been disposed of by the AT
Recognition and enforcement of the award
o A foreign arb award shall be recognized as binding and,
upon petition in writing to the RTC
o Pet for recog and enforcement of such arb award shall
be filed with RTC in accordance with the Special ADR
Rules.
o A foreign arb award when confirmed by the RTC shall be
enforced in the same manner as final and executor
decisions of the courts of law of the Ph
Appeal from court decision on arb awards CA
o Any stipulation by the parties that the AT award or
decision shall be final and therefore not appealable is
valid waiver of right to appeal from an arb award but
w/o prejudice to judicial review by way of certiorari
Legal Representation in ICA a party may be represented by
any person of his own choice provided that such rep, unless
admitted to the practice of law in the ph, shall not be
authorized to appear as counsel in any Ph courts or in any
quasi-judicial body
Confidentiality of the proceedings confidential and shall not
be published
o Xpn: with the consent of the parties; or
For the limited purpose of disclosing to the court
relevant documents in cases where resort to the
court is allowed herein.

Domestic Arbitration
ADR Act and Department Circular No. 98 basically the same

UNCITRAL

International elements:
1. Place of business of parties are in different states;
2. Same states but they agree to conduct arb to another
state
3. Place of business/domicile the same but the subject matter
of the arb is to be complied with or conducted in a different
state
4. If the parties agrees that the subject matter relates to
more than one state
May be institutional or ad hoc

Arbitration Agreement in writing; same as ADR Act


1. Arb clause pertains to future dispute
2. Independent arb agreement
3. Submission agreement existing dispute
Award must be based on applicable substantive law. Parties
are free to choose what states law shall apply pertains to
laws of what jurisdiction
o If the law is silent equity jurisdiction
Corrections and interpretation of Awards; additional award
o Within 30 days from receipt of award, unless another
period is stipulated:
Motion to correct to AT any error in
computation, clerical or typographical errors or
any errors of similar nature
Motion to interpret to AT to give an
interpretation of a specific point or part of the
award
Motion for additional award
o AT may correct at its own initiative within the same
period

Appointment of Arbitrator any person appointed to serve as


an arbitrator must be of legal age, in full enjoyment of his civil
rights and knows how to read and write; not related by blood
or marriage within the 6th degree to either party; no financial,
fiduciary, or other interest In the controversy or cause to be
decided or in the result of the proceeding, or has any personal
bias which might prejudice the right of any party to a fair and
impartial award
o Parties free to agree procedure in appointing (in
contract or submission agreement)
o Failing: SAME
Challenge: additional grounds disqualified to act as arbitrator
Refuses to respond to questions by a party
regarding the nature and extent of his

professional dealings with a party or its


counsel.
o Procedure: SAME
Commencement of arbitral proceedings
When there is prior agreement
o Institutional arb in accordance with the arbitration
rules of the institution agreed upon by the parties
o Ad hoc commenced by the claimant upon delivering
to the resp a demand for arb.
No prior agreement through a demant upon the other to
submit their dispute to arb. Commenced by the agreement by
the other party.

Language free to agree


o Failing: Filipino or English
Motion to Vacate/Confirm Arb award to Court

Construction Industry Arbitration

CIAC jurisdiction original and exclusive jurisdiction over


disputes arising from, or connected with contracts entered
into by parties involved in construction in the PH, whether the
dispute arises before or after the completion of the contract,
or after the abandonment or breach thereof
o For the board to acquire jurisdiction, the parties must
agree to submit the same to VOLUNTARY ARB
o Does not cover dispute arising from ER-EE rel
Arbitrators must be accredited by CIAC

If parties fail to agree on the number of arbs, CIAC


taking into consideration the complexities and
intricacies of the dispute, has the option to appoint a
sole or AT
o If CIAC decided AT, parties only nominate from the list
of accredited arb by CIAC, each party may nominate 1
arb from the list for appointment and confirmation. 3 rd
who is acceptable to both (common nominee) parties
confirmed in writing shall be appointed and preside
over the tribunal
Appointment of expert request by the parties must be
confirmed by the AT
o Whenever the parties request for the service of an
expert equally shoulder experts fees and expenses
Arbitration expenses imposed by CIAC
Deposit to Cover Arbitration expenses- to the secretariat
before the arb commence
o May be equally shared or paid by one of the parties. If
one fails to render deposit, the case shall be considered
dismissed but the parties still be liable to pay of the
agreed admin charge
Award final from day 1. Inappealable except on question of
law SC
o As soon as it become final and executory, AT or arb,
with concurrence of the CIAC, shall motu proprio or on
motion, issue a writ of execution
o