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Mock Arbitration

Opening remarks :


1. Xander Constructions motion to dismiss-whether or not this will be resolved as a

preliminary issue or with the main dispute;

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May we ask the honorable arbitrator that the issue be resolved as a preliminary issue in
accordance with UNCITRAL Model law Article 16. (2);
(2) A plea that the arbitral tribunal does not have jurisdiction shall be raised
not later than the submission of the statement of defence. A party is not
precluded from raising such a plea by the fact that he has appointed, or
participated in the appointment of, an arbitrator. A plea that the arbitral
tribunal is exceeding the scope of its authority shall be raised as soon as the Part
One. UNCITRAL Model Law on International Commercial Arbitration 9 matter
alleged to be beyond the scope of its authority is raised during the arbitral
proceedings. The arbitral tribunal may, in either case, admit a later plea if it
considers the delay justified.
Our main contention is to ask for the dismissal of this case in this jurisdiction.

2. Whether or not an CLAC take jurisdiction despite CIAC having taken jurisdiction over the
parties dispute first;

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Bearing in mind that the Arbitral Tribunal is empowered to make a
determination as to its own jurisdiction to deal with the substantive claims in dispute.
We do recognize that the decisions of the Tribunal on procedural matters are final. May
we therefore, requests that the Tribunal give consideration upon the fact that although
the Respondent has indeed brought a counterclaim and paid the designated arbitration
fee, the Respondent has done so declaring that these actions should not by any means
be construed as an acceptance of the Tribunals jurisdiction to arbitrate the dispute in
question. In fact the Respondent has repeatedly stressed and reaffirmed that the sole
reason for bringing a counterclaim to the Tribunal and paying the designated arbitration
fee is that the Respondent considers the above course of action as the only way to
secure its legitimate interests. The Respondent would like to recognize the authority of
CIAC to adjudicate the dispute on the following grounds:
a.) The contract of Xander and JBTI is essentially a contractors contract due to
their Consortium Agreement to jointly bid for the mechanical and electrical
requirements of a four storey mansion for soon to be married couple, Billy
Crawford and Coleen Garcia. But since Billy and Coleen were not keen on
dealing with a consortium company thus Xander and JBTI entered into an
Equipment Supply Sub-Contract Agreement (ESSA)
b.) Article 7. (5) Definition and form of arbitration agreement
(5) Furthermore, an arbitration agreement is in writing if it is contained in
an exchange of statements of claim and defence in which the existence of
an agreement is alleged by one party and not denied by the other.
c.) Given that ESSA will be the basis Sec. 4 of Exec Order 1008 states that;

Sec. 4. Jurisdiction. The CIAC shall have original and exclusive

jurisdiction over disputes arising from, or connected with, contracts entered
into by parties involved in construction in the Philippines, whether the
dispute arises before or after the completion of the contract, or after the
abandonment or breach thereof. These disputes may involve government or
private contracts. For the Board to acquire jurisdiction, the parties to a
dispute must agree to submit the same to voluntary arbitration.

The jurisdiction of the CIAC may include but is not limited to violation of
specifications for materials and workmanship; violation of the terms of
agreement; interpretation and/or application of contractual time and
delays; maintenance and defects; payment, default of employer or
contractor and changes in contract cost.

Excluded from the coverage of this law are disputes arising from employer-
employee relationships which shall continue to be covered by the Labor
Code of the Philippines.
d. ) Page 567 of Autea book The China Chang ruling maintains the jurisdiction
of the CIAC to arbitrate construction disputes regardless of t whether the CIAC
was specifically mentioned in the arbitration clause as the forum for arbitration.
China Chang Jiang Energy Corp (Phils) vs Rosal Infrastrature Builders G.R.
125706 Sept 30,1996
Additional Case ( as per Mam Tere) : G.R. No. 179628 January 16, 2013 THE
AIDA AMURAO, Respondents

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Parties enjoy fiscal autonomy, but it is not without limitation. They may select
the law that will govern their substantive rights, but it must be in line to what is
provided under the rules. it is provided that in case of defects of materials subject of the
issue, the CIAC has exclusive and original jurisdiction, and etc....

CIAC may not be the one stipulated by the parties to handle the arbitration, but
it is precluded since the law so provides that it has jurisdiction.

3. JBTIs application for preliminary measure of protection to enjoin Xander Construction

from pursuing the CIAC arbitration-whether or not the CLAC arbitrator has the authority
to enjoin the CIAC arbitration
4. Whether of not the CLAC arbitrator should enjoin Xander Construction from pursuing
the CIAC arbitration.

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Page 285 of Autea book It may be deduced from the China Chang case that it follows
the first-to-file rule. The contracting party which is first to file a request for arbitration
gets the opportunity to determine which arbitral institution as between the CIAC and
whichever arbitral institution was specifically mentioned in the arbitration clause-will
take cognizance of the arbitration.