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ADR - Tadiar PDF
ADR - Tadiar PDF
A. Purpose
1
The second and third WHEREAS clauses of P.D. 1508 states:
WHEREAS The indiscriminate filing of cases in the courts of justice
contributes heavily and unjustifiably to the congestion of court dockets, thus
causing a deterioration in the quality of justice
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The Katarungang Pambarangay (KB) Law and Alternative Dispute Resolution (ADR) Mechanisms
Court has been issued that no compromise settlement has been reached
despite personal confrontation of the parties.5
2. All civil cases without limit on the amount or value of the property
involved in the dispute.10
5
LOCAL GOVERNMENT CODE OF 1991, Sec. 412, Conciliation, Pre-condition to filing complaint in
court. The certification is that there has been a confrontation between the parties before the
upon chairman or the pangkat and that no conciliation has been reached. The certification is
made by the lupon secretary or pangkat secretary as attested to by the lupon chairman or
pangkat chairman
6
The requirement that both disputants must be natural persons is inferred from Sec. 410 of the
LOCAL GOVERNMENT CODE OF 1991, authorizing any individual who has a cause of action against
another individual to file a complaint. The use of the terms individual and not the generic
persons which include corporations, is intended to convey that narrower meaning.
7
The use of the term actually residing was intended to exclude legal residence
8
This requirement of actual residence in the larger local government unit of a city or municipality,
is provided for in Sec. 408 of the LOCAL GOVERNMENT CODE OF 1991. Notwithstanding its clear
provision, however, it is common error, even among lawyers, to equate this requirement with
residence in the same barangay, thus unduly restricting its broader application. The confusion is
understandable in light of the title that this system is only for administering justice in the
Barangay.
9
LOCAL GOVERNMENT CODE OF 1991, Sec. 408, provides that the coverage is for amicable
settlement of all disputes except...
10
Barangay conciliation is not restricted to jurisdictional amounts of first level courts, Morata et
al., v. Go and Hon. Tomol, G.R. No. 62339, October 27, 1983, 125 SCRA 444. Claim for
damages, regardless of the amount involved, arising from an offense outside the jurisdiction of
KB, may be settled under KB law (Opinion of Minister of Justice, No. 151, series of 1979 and No.
51, series of 1980, and Opinion dated October 25, 1982.)
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The Katarungang Pambarangay (KB) Law and Alternative Dispute Resolution (ADR) Mechanisms
2. Where the real property or the larger portion thereof (involved in the
dispute) is situated
4. Where the institution in which parties are enrolled for study is located
11
The limits to the broad scope of this extended authority have not been tested. Thus, it is not
settled whether corporations or non-residents of a city or town, may now avail of this remedy
based on this expanded jurisdiction.
12
LOCAL GOVERNMENT CODE OF 1991, Sec. 409: Venue.
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The Katarungang Pambarangay (KB) Law and Alternative Dispute Resolution (ADR) Mechanisms
H. Arbitration
At any time during the two stages of conciliation stated above,16 the
parties may execute an agreement to arbitrate wherein they agree to
abide by the arbitration award made by the lupon chairman or the
pangkat17.
13
LOCAL GOVERNMENT CODE OF 1991, Sec. 410.
14
Id., Sec. 404.
15
Id., Sec. 410 (e).
16
Id., Sec. 413.
17
Arbitration is hardly resorted to at the Barangay level. The reason for this is that the process is
not well understood and thus, is hardly suggested as an alternative to the parties. See Tadiar
Research Survey on the Conciliation of Disputes under the KB Law, book bound mimeo, 215
pages, 1984, UP Law Center
18
LOCAL GOVERNMENT CODE OF 1991, Sec. 416 provides that a petition to nullify the award has
been filed before the proper city or municipal court.
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The Katarungang Pambarangay (KB) Law and Alternative Dispute Resolution (ADR) Mechanisms
statement that must be sworn to before the Lupon Chairman on the ground
that his consent thereto was vitiated by fraud, violence or intimidation19.
The grounds for repudiation of the arbitration agreement, as already noted
above, are the same.
K. Sanctions
19
LOCAL GOVERNMENT CODE OF 1991, Sec. 418.
20
CIVIL CODE, Art. 1330 to 1346.
21
It must be noted that computation for execution by the Lupon is 6 months from date of
settlement. This is understandable since that is also the date when the parties signed the
compromise agreement. However, there is no provision for computing the period in the case of
an arbitral award which is certainly not signed by the parties. It is suggested that commencement
of the period is from date when the award was received by the parties.
22
A problem arises in a case where monthly installments for 12 months is agreed upon and
default is made only on the seventh month. If literal interpretation is made, then a new action to
collect the 7th to the 12th installments must already be filed in court. However, a logical
interpretation would construe the computation of the 6 month period from the date of breach
which is the accrual of the cause of action. On this interpretation, the motion for execution must
still be filed with the Lupon. This is in accord with the objective of decongesting court dockets.
23
Pres. Decree No. 1508, Sec. 4 (d).
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The Katarungang Pambarangay (KB) Law and Alternative Dispute Resolution (ADR) Mechanisms
24
This could be questioned as a procedural rule that exceeds substantive law.
25
The question of whether sanctions may be imposed on the authority of the IRR where there is
no sanctions provided in the substantive law, has not been tested.
26
KB IRR, Sec. 1 c (1).
27
Royales v. Intermediate Appellate Court, G.R. No. 65072, January 31, 1984, 127 SCRA 470.
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The Katarungang Pambarangay (KB) Law and Alternative Dispute Resolution (ADR) Mechanisms
2. Comprehensible proceedings.
3. Non-intervention of lawyers30
28
Former CJ Artemio Panganiban acronymized ACID as the popular dissatisfactions with the
judicial mode of resolving disputes. A stands for restricted ACCESS to the courts; C is for
CORRUPTION; I is for INCOMPETENCE; and D stands for DELAY in the delivery of justice.
29
KB IRR, Rule VI, Sec. 4.
30
LOCAL GOVERNMENT CODE OF 1991, Sec. 15 provides: Appearance of parties in person. - In all
KB proceedings, the parties must appear in person without the assistance of counsel or
representative, except minors and incompetents who may be assisted by their next-of-kin who
are not lawyers.
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The Katarungang Pambarangay (KB) Law and Alternative Dispute Resolution (ADR) Mechanisms
4. Brevity of proceedings
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The Katarungang Pambarangay (KB) Law and Alternative Dispute Resolution (ADR) Mechanisms
More than twenty (20) years later, CAM was introduced in 1999 to address
the cases that are pending in court. Its feasibility as a useful tool to unclog the
heavy court dockets37, was earlier shown by a pilot study approved by the Supreme
Court for Quezon City and San Fernando, La Union. Conducted in 1991-93 by the
UP Office of Legal Aid with funding from The Asia Foundation (TAF), and directed
by Professor Alfredo F. Tadiar38, the experiment showed a success rate of 31.14%
for the first level courts and 43.54% success rate for the RTC in San Fernando but
only an 11.76% success rate for Quezon City.
Mediation Defined
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The Katarungang Pambarangay (KB) Law and Alternative Dispute Resolution (ADR) Mechanisms
41
Id., Sec. 2 (l).
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Each one of those distinctions shall be discussed separately, as
follows:
This is the case with the bifurcated trial of criminal cases that is
followed under the American system. It is only after a verdict of guilty that
the blindfold is literally removed to allow the imposition of a penalty
suitable to the person of a convicted accused after a thorough study is
made of the character of the person convicted. It is at this stage of
sentencing that the blindfold from the lady symbol of justice is removed.
42
CIVIL CODE, Art. 2028.
43
RULES OF COURT, Rule 130, Sec. 51.
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Unfortunately, in Philippine criminal trials, a mix-up takes place
whereby evidence of mitigating and aggravating circumstances are
considered together with evidence of guilt or innocence. It is like an
accused saying I am innocent but if you find me guilty, please be lenient
in imposing my punishment. This kind of trial has been criticized as more
prone to a miscarriage of justice than a bifurcated one.
44
CIVIL CODE, Arts. 2229 to 2235.
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The result of mediation may be a win-win agreement; that of
litigation must always be a win-lose decision. The judgment is a clear
condemnation of a wrong or the exoneration of innocence. It has been
insightfully observed that we need the black and white judgment of
litigation to keep alive our sense of right and wrong. Otherwise, the gray
area of a compromise may serve to dull it.
45
104 Court-Annexed Mediation Units, 2 Appeals Court Mediation units and 4 Mobile Court-
Annexed Mediation Units.
46
719 CAM Mediators and 79 ACM Mediators.
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parties to resolve their own disputes and give practical effect to the State
Policy expressly stated in the ADR Act of 2004 (Rep. Act No. 9285, to wit:
(1) All civil cases and the civil liability of criminal cases
covered by the Rule on Summary Procedure, including
the civil liability of crimes charging violation of B.P. 22,
except those which by law may not be compromised;
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(2) Special proceedings for the settlement of estates;
(4) All cases under Rep. Act No. 9262 (Violence against
Women and Children); and
47
LOCAL GOVERNMENT CODE OF 1991, Chapter 7 essentially re-enacts the Katarungang
Pambarangay Law with some revisions and, therefore, is referred to as the Revised KB Law.
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Procedure in CAM
1. After the last pleading has been filed, the judge shall issue an order
requiring the parties to forthwith appear before the concerned Philippine
Mediation Center (PMC) Unit staff to start the process for the settlement of
their dispute through mediation. On the same date, the court shall give
copies of the order for mediation and other pertinent pleadings filed to the
PMC.
4. The order issued shall include a clear warning that sanctions may be
imposed upon a party for failure to comply therewith in accordance with
the Section below on sanctions.
5. On the date set in the order, the parties shall proceed to select a
mutually acceptable mediator from among the list of accredited mediators.
If no agreement is reached, the Mediation Staff Officer in the PMC Unit
shall recommend three (3) mediators from whom said officer shall choose
by lot the one who will mediate the dispute.
8. At the initial conference, the Mediator shall explain to both parties the
mediation process, stressing the benefits of an early settlement of their
dispute based on serving their mutual interests rather than the legal
positions taken by them.
9. With the consent of both parties, the Mediator may hold separate
caucuses with each party to determine their respective real interests in the
dispute. Thereafter, another joint conference may be held to consider
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various options that may resolve the dispute through reciprocal
concession and on terms that are mutually beneficial
10. The Mediator shall not record in any manner the proceedings of the
joint conferences or of the separate caucuses. No transcript or minutes of
mediation proceedings shall be taken. If personal notes are taken for
guidance, the notes shall be shredded and destroyed. Should such record
exists, they shall not be admissible as evidence in any other proceeding.
11. If no settlement has been reached at the end of the period given, the
case must be returned to the referring judge (or in appropriate cases the
JDR judge) for further proceedings.
Sanctions
The Mediator shall have a period of not exceeding thirty (30) days
to complete the mediation process. Such period shall be computed from
the date when the parties first appeared for the initial conference as stated
in the order to appear. An extended period of another thirty (30) days may
be granted by the court upon motion filed by the Mediator with the
conformity of the parties.
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Suspension of periods
Settlement
48
In the following areas: City of San Fernando, Angeles City, and Pampanga; Bacolod City and
Negros Occidental; Baguio City and Benguet; Cagayan De Oro City and Misamis Oriental; San
Fernando City and La Union; and Makati City per Court En Banc Resolution, dated November 13,
2007, in Administrative Matter No. 04-1-12-SC-PHILJA.
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during private caucus. As a mediator, the JDR judge actively facilitates and
assists negotiations among the parties.
Procedure
Judicial proceedings shall be divided into two stages - (1) from the
filing of a complaint, to the conduct of CAM and JDR during the pre-trial
stage, and (2) pre-trial proper to trial and judgment. The judge to whom the
case has been originally raffled, who shall be called the JDR Judge, shall
preside over the first stage. The judge, who shall be called the trial judge,
shall preside over the second stage.51
At the initial stage of the pre-trial conference, the JDR judge briefs
the parties and counsels of the CAM and JDR processes. Thereafter, he
issues an Order of Referral of the case to CAM and directs parties and
their counsels to proceed to the PMCU bringing with them copies of the
Order of Referral and major pleadings (complaint, answer etc.). The JDR
judge shall include in said Order or in another Order the pre-setting of the
case for JDR not earlier than forty-five (45) days from the time the parties
first personally appear at the PMCU so that JDR will be conducted
immediately if the parties do not settle at CAM.
All incidents or motions filed during the first stage shall be dealt with
by the JDR judge. If JDR is not conducted because of the failure of parties
to appear, the JDR judge may impose the appropriate sanctions and shall
continue with the proceedings of the case.52
If the parties do not settle their dispute at CAM, the parties and their
counsels shall appear at the preset date before the JDR judge who will
50
A.M. No. 04-1-12-SC-PhilJA, as amended, November 13, 2007, Part IV, No. 5, modified.
51
A.M. No. 04-1-12-SC-PhilJA, as amended, November 13, 2007, Part IV, modified.
52
A.M. No. 04-1-12-SC-PhilJA, as amended, November 13, 2007, Part IV, modified.
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then conduct the JDR process as mediator, neutral evaluator and/or
conciliator in order to actively assist and facilitate negotiations among the
parties for them to settle their dispute. As mediator and conciliator, the
judge facilitates the settlement discussions between parties and tries to
reconcile their differences. As a neutral evaluator, the judge assesses the
relative strengths and weaknesses of each party's case and makes a non-
binding and impartial evaluation of the chances of each party's success in
the case. On the basis of such neutral evaluation, the judge persuades the
parties to a fair and mutually acceptable settlement of their dispute.53
The JDR Judge shall not preside over the trial of the case54 when
parties did not settle their dispute at JDR.55
Courts
1. Multiple Sala Court - If the case is not resolved during JDR, it shall
be raffled to another branch for the pre trial proper56 up to
judgment.57
53
A.M. No. 04-1-12-SC-PhilJA, as amended, November 13, 2007, Part III, last paragraph,
modified.
54
Parties will be more spontaneous once they are assured that the JDR judge will not be the one
to try the case. This is so because, the JDR judge may have elicited confidential information that
may create bias and partiality that could affect the judgment.
55
A.M. No. 04-1-12-SC-PhilJA, as amended, November 13, 2007, Part IV, second paragraph.
56
Rule 18, Sec. 2, paragraphs b, c, d, e, f, g, and i.
57
A.M. No. 04-1-12-SC-PhilJA, as amended, November 13, 2007, Part IV, No. 1.
58
Includes post-judgment proceedings e.g. motion for reconsideration, execution, etc.
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Notwithstanding the foregoing, the parties may file, by joint
written motion, a request before commencement of the JDR
proceedings that the court of origin shall conduct the JDR
proceedings and trial.59
59
A.M. No. 04-1-12-SC-PhilJA, as amended, November 13, 2007, Part IV, No. 2, modified.
60
A.M. No. 04-1-12-SC-PhilJA, as amended, November 13, 2007, Part IV, No. 3, modified.
61
A.M. No. 04-1-12-SC-PhilJA, as amended, November 13, 2007, Part IV, No. 4, modified.
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JDR During Trial
Cases may be referred to JDR even during the trial stage upon
written motion of one or both parties indicating willingness to discuss a
possible compromise. If the motion is granted the trial shall be
suspended62 and the case referred to JDR which shall be conducted by
another judge through raffle in multiple sala courts.
Settlement Period
Party Participation
62
CIVIL CODE, Art. 2030, par. 1.
63
A.M. No. 04-1-12-SC-PhilJA, as amended, November 13, 2007, Part IV, No. 9, modified.
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2. Corporate Party Litigants
Sanctions
A party who fails to appear on the date set for JDR conference,
may forthwith be imposed the appropriate sanctions as provided in Rule
18 of the Revised Rules of Court and relevant issuances of the Supreme
Court including, but not limited to censure, reprimand, contempt, requiring
the absent party to reimburse the appearing party his costs, including
attorneys fees for that day, up to treble such costs, payable on or before
the4 date of the re-scheduled setting. Sanctions may be imposed by the
JDR Judge upon motion of the appearing party or motu proprio.
64
A.M. No. 0-3-15-SC, 23 March 2004 and A.M. No. 04-1-12-SC-PhilJA, as amended, November
13, 2007, Part IV, No. 11, modified.
65
A.M. No. 04-1-12-SC-PhilJA, as amended, November 13, 2007, Part IV, No. 12.
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Duration of JDR proceedings
Suspension of periods
Settlement
A. Civil Cases
66
A.M. No. 04-1-12-SC-PhilJA, as amended, November 13, 2007, Part IV, Nos. 6 and 10,
modified.
67
A.M. No. 04-1-12-SC-PhilJA, as amended, November 13, 2007, Part IV, No. 7 on archiving
N.B. held for further study, modified.
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If partial settlement is reached, the parties shall, with the
assistance of counsel, submit the terms thereof for the courts
approval and rendition of a judgment upon partial compromise
which may be enforced by execution without waiting for resolution
of the unsettled part.
B. Criminal Cases
Pre-trial Proper
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Trial and Judgment
The trial judge to whom the case was turned over, shall
expeditiously proceed to trial following pre-trial and thereafter render
judgment in accordance with the established facts determined by the
judge and the applicable laws.
To date, trial courts in JDR sites do not only conduct JDR proceedings in
cases initially filed with them since the Supreme Court has already issued
Administrative Order No. 28-2009 dated March 2, 2009 directing all regional trial
courts in JDR sites acting as appellate courts in appeals from first level courts to
conduct JDR on appeal.
68
Administrative Matter No. 02-2-17-SC, April 16, 2002.
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the coverage of mediatable cases which were vested by separate issuances of
the Supreme Court.
For all the foregoing reasons, the PMCO Executive Committee has
endorsed to the PHILJA Board of Trustees such consolidated guidelines.69
Thereafter, the Supreme Court approved the Consolidated and Revised
Guidelines to Implement the Expanded Coverage of Court-Annexed Mediation
and Judicial Dispute Resolution. 70
69
65th Meeting of PHILJA Board of Trustees, November 4, 2009.
70
Court en banc Resolution dated January 11, 2011 in A.M. No. 11-1-6-SC-PHILJA
71
Jeremy Bentham, the noted English Utilitarian, posits that of the three variables, severity is the
least important of them.
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As a result of the foregoing reasoning, and considering that generally, the
caseloads of courts are about 75% criminal,72 it was proposed73 to expand the
criminal case coverage for mediation to include the civil aspect of all crimes
falling within the exclusive jurisdiction of the first level courts.
The rationale for such proposal is that the accused who are charged of
offenses which are punishable by a penalty not exceeding 6 years of
imprisonment or prision correccional, if convicted, is not intended to be punished
but to be corrected and rehabilitated. Even the nomenclature of the penalty,
correccional, infers such a purpose of teaching a lesson to effect a rehabilitation.
Such a rationale is further clearly inferred from the fact that such offenses are
subject to probation.
72
Summary Report of Cases for 2006 shows that only 108,855 civil cases were pending at that
period, while 524,685 criminal cases were similarly pending.
73
The proposal was made by the author to the PMCO Executive Committee, based on a study
conducted and funded by The Asia Foundation.
74
DOJ Mediation Program.
75
Article 25, RPC, categorizes these penalties as those punishable with prision mayor, reclusion
temporal, reclusion perpetua and death (6 years and 1 day, 20 years and life imprisonment to
death).
76
For complete text of the Rules, see enclosed CD.
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Rule 1.4 Verification and submissions
Rule 1.5 Certification against forum shopping
Rule 1.6 Prohibited submissions
Rule 1.7 Computation of time
Rule 1.8 Service and filing of pleadings, motions and other papers
in non-summary proceedings
Rule 1.9 No summons
Rule 1.10 Contents of petition/motion
Rule 1.11 Definitions
Rule 1.12 Applicability of Part II on Specific Court Relief
Rule 1.13 Spirit and intent of the Special ADR Rules
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B. Judicial Relief after Arbitration Commences
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Rule 5.14 Conflict or inconsistency between interim measure by
court and by arbitral tribunal
Rule 5.15 Court to defer action on interim measures upon
constitution of tribunal
Rule 5.16 Court assistance should tribunal be unable to enforce
Rule 8.1 Who may request for termination and on what grounds
Rule 8.2 When to request
Rule 8.3 Venue
Rule 8.4 Contents of petition
Rule 8.5 Comment/Opposition
Rule 8.6 Court action
Rule 8.7 No motion for reconsideration or appeal
Rule 8.8 Appointment of substitute arbitrator
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RULE 9: ASSISTANCE IN TAKING EVIDENCE
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RULE 12: RECOGNITION AND ENFORCEMENT OR SETTING
ASIDE OF INTERNATIONAL COMMERCIAL ARBITRATION
AWARD
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PART III PROVISIONS SPECIFIC TO MEDIATION
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Rule 18.3 Applicability of rules on arbitration
Rule 18.4 Referral
Rule 18.5 Submission of settlement agreement
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D. SPECIAL CIVIL ACTION FOR CERTIORARI
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RULE 22: APPLICABILITY OF THE RULES OF COURT
Purpose
77
Passed April 2, 2004.
78
Section 17 (c), relating to enforcement of a settlement deposited in court; Effectivity. - By an En
Banc Resolution (A.M. No. 07-11-08-SC) issued on September 1, 2009, the Special Rules of
Court on ADR took effect on October 30, 2009 following its publication in three (3) newspapers
of general circulation. Rep. Act No. 9285, Sec. 40, paragraph 4, relating to judicial confirmation
of a domestic award.
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Special ADR Rules79 Thus, the courts are enjoined to extend their
greatest cooperation and (to exercise) the least intervention.80
Exclusions
2) The law does not apply to the resolution or settlement of labor disputes
under the Labor Code.82
XI. Features
79
SPECIAL ADR RULES OF COURT, Rule 2.2 Policy on arbitration (B).
80
Id., Rule 2.1: General policies.
81
Id., Rule 2.5: Policy on mediation.
82
Rep. Act No. 9285, Sec. 6: Exceptions to the application of this Act.
83
Rep. Act No. 876, Sec. 2: parties to a contract may in such contract agree to settle by
arbitration a controversy thereafter arising between them.
84
Id., parties may submit to arbitration any controversy existing between them
85
SPECIAL ADR RULES, Rule 2.1: General policies.
86
Id.
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3) Need for judicial confirmation of award to make it enforceable. All
awards made by an arbitrator or arbitral tribunal requires confirmation
by a court of law in order to be enforceable.87
5) The law and the Special Rules recognize that construction disputes
shall be governed by Exec. Order No. 1008 and its arbitration rules.91
87
Rep. Act No. 9285, Sec. 40: Confirmation of Award.
88
Id., Sec. 40, paragraph 4.
89
Rule 2.3 Rules governing arbitral proceedings.
90
Rep. Act No. 9285, Sec. 26: Meaning of appointing authority.
91
Id., Sec. 34. Arbitration of construction disputes: Governing Law, The arbitration of
construction disputes shall be governed by Executive Order No. 1008, otherwise known as the
Construction Industry Arbitration Law.
92
Id., Sec. 39. Court to dismiss case involving construction disputes.
93
The suppletory application of the Rules of Court was proposed but was objected to by the
technical working group. Instead, Rule 22.1 was approved in effect stating that those relevant
provisions of the Rules of Court have either been included and incorporated in these Special
ADR Rules, or specifically referred to herein. Therefore, there is no need for providing for its
suppletory application.
94
Rule now mandates the joinder of the two remedies if filed separately.
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On the other hand, Section 23 of the general Arbitration Law 95
require that an award must first be confirmed by a Regional Trial Court
where the parties reside and an appeal therefrom is allowed under Section
29 thereof.
Where the losing party files an action to vacate or modify the award
and the prevailing party files a separate petition to confirm the award in its
favor, upon motionof either party, the court may order the consolidation of
the two cases before either court.96
9) All actions under the Special ADR Rules of Court are classified as
special proceedings97. This means that an initiatory pleading is a
petition.
95
Rep. Act No. 876.
96
SPECIAL ADR RULES OF COURT, Rule 11.5, paragraph 5.
97
Id., Rule 1.2: All proceedings under the Special ADR Rules are special proceedings.
98
Id., Rule 1.3 lists nine (9) interventions that are required to follow summary procedure.
99
Id., No provision is made for service by postal service.
100
Id.
101
Id., Rule 2.3 Policy implementing competence-competence principle.
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12) Appeal to the Supreme Court now discretionary.
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