Professional Documents
Culture Documents
ADR Reviewer PDF
ADR Reviewer PDF
A: It means institutions or persons accredited as mediator, A: Any information, relative to the subject of mediation or
conciliator, arbitrator, neutral evaluator, or any person arbitration, expressly intended by the source not to be
exercising similar functions in any Alternative Dispute disclosed, or obtained under circumstances that would create
Resolution system. a reasonable expectation on behalf of the source that the
information shall not be disclosed.
NOTE: The parties are given the right to chose non-accredited
individuals to act as mediator, conciliator, arbitrator, or Q: What is included in the phrase “confidential
neutral evaluator of their dispute. information?”
A: It shall refer to individuals acting as mediator, conciliator, (1) communication, oral or written, made in a dispute
arbitrator or neutral evaluator. resolution proceedings, including any memoranda,
notes or work product of the neutral party or non-
Q: In what ways, ADR is implemented? party participant;
(2) an oral or written statement made or which occurs
A: during mediation or for purposes of considering,
1. Arbitration conducting, participating, initiating, continuing of
2. Mediation or conciliation reconvening mediation or retaining a mediator; and
3. Mini-trial (3) Pleadings, motions manifestations, witness
4. Early Neutral Evaluation statements, reports filed or submitted in an
arbitration or for expert evaluation.
Q: What is arbitration?
Q: What is Court-Annexed Mediation?
A: Arbitration means a voluntary dispute resolution process
in which one or more arbitrators, appointed in accordance A: It means any mediation process conducted under the
with the agreement of the parties, or rules promulgated auspices of the court, after such court has acquired
pursuant to ADR Act of 2004, resolve a dispute by rendering jurisdiction of the dispute.
an award.
Q: What are the purposes of a court-annexed mediation?
Q: Who determines/chooses the particular way to be
utilized in resolving a dispute through the ADR? A:
1. To unclog the docket of the court
A: The parties can implement the kind of dispute resolution 2. To shorten the proceedings
that they would like to avail of. 3. To help in the evaluation of elements
4. To bring the parties into a settlement
Q: Who is an arbitrator?
Illustration:
A: Arbitrator means the person appointed to render an
award, alone or with others, in a dispute that is the subject of Q: There is a court proceeding between A and B with regard
an arbitration agreement. the accounting claim of A to B. Can the court direct the
parties to go to ADR in order to determine whether or not
Q: What is an award? the particular amount being claimed by A is correct?
A: It means any partial or final decision by an arbitrator in A: In such case, the court may refer the parties. Since the
resolving the issue in a controversy. court will have to determine the actual amount which the
parties owe to each other, the court can direct the parties to
Q: When is arbitration considered as commercial? go to mediation to an annex court. The judge in such case will
be the judge of an annex court who is not the same judge
A: An arbitration is "commercial” if it covers matter arising with whom the case was first filed. The 2 courts in such case
from all relationships of a commercial nature, whether belongs to the same category or equal level.
contractual or not.
Q: What is Court-Referred Mediation?
Q: Give the rule as regards the confidentiality of information
with regard to arbitration or mediation. A: It means mediation ordered by a court to be conducted in
accordance with the Agreement of the Parties when as
A: It means a person who conducts mediation. Information obtained through mediation shall be privileged
and confidential. A party, a mediator, or a nonparty
Q: What is Mini-Trial? participant may refuse to disclose and may prevent any other
person from disclosing a mediation communication.
A: It means a structured dispute resolution method in which
the merits of a case are argued before a panel comprising GENERAL RULE (Section 9)
senior decision makers with or without the presence of a
neutral third person after which the parties seek a negotiated Information obtained through mediation proceedings shall be
settlement. subject to the following principles and guidelines:
Q: What is the difference between mini-trial and early (a) Information obtained through mediation shall be
neutral evaluation? privileged and confidential.
(b) A party, a mediator, or a nonparty participant may
A: refuse to disclose and may prevent any other
person from disclosing a mediation
MINI-TRIAL EARLY NEUTRAL communication.
EVALUATION
There is a decision and from The resolution is merely an Q: May the modes of discovery under the rules of court be
that decision the parties are advice; the parties may take availed of to obtain information disclosed in mediation
compelled to go a mediated such resolution or not, proceedings?
agreement. It will result in hence, not binding
the termination of the A:
mediation, hence, binding. (c) Confidential Information shall not be subject to
discovery and shall be inadmissible if any
Q: Who is a non-party participant? adversarial proceeding, whether judicial or quasi-
judicial, However, evidence or information that is
A: It means a person other than a party or mediator, who otherwise admissible or subject to discovery does
participates in a mediation proceeding as a witness, resource not become inadmissible or protected from
person or expert. discovery solely by reason of its use in a mediation.
EXCEPTION TO THE APPLICATION OF THE ADR LAW Q: Who are the parties covered by the confidentiality rule?
mediation may not be compelled to disclose presentation of evidence that is privileged. Suppose the
confidential information obtained during mediation: court did not sustain the objection, and allow the mediator
to continue his testimony, what will be the aggrieved party’s
(1) the parties to the dispute; recourse?
(2) the mediator or mediators;
(3) the counsel for the parties; A: The court may allow the party the right to respond and
(4) the nonparty participants; repudiate whatever testimony that was given by the
(5) any persons hired or engaged in connection mediator (right to rebut or counter-testimony). He may also
with the mediation as secretary, stenographer, file an action for damages.
clerk or assistant; and
(6) any other person who obtains or possesses EXCEPTIONS
confidential information by reason of his/her
profession. (a) There is no privilege against disclosure under Section 9 if
mediation communication is:
Q: There is an on-going mediation proceedings, as a
consequence of that proceedings, a party filed a case in a. in an agreement evidenced by a record
court which involve the same issue, same parties that is the authenticated by all parties to the agreement;
subject of mediation. Then the parties subpoenaed the b. available to the public or that is made during a
mediator as a witness to testify about the mediation session of a mediation which is open, or is
proceedings, can the mediator testify? required by law to be open, to the public;
c. a threat or statement of a plan to inflict bodily
A: No injury or commit a crime of violence;
d. internationally used to plan a crime, attempt to
Q: Can the mediator voluntarily testify? commit, or commit a crime, or conceal an
ongoing crime or criminal activity;
A: No, because such situation will violate the rules on e. sought or offered to prove or disprove abuse,
confidentiality neglect, abandonment, or exploitation in a
proceeding in which a public agency is
Q: Can this privilege arising from the confidentiality of protecting the interest of an individual
information in mediation proceedings be waived? protected by law;
A: Yes. A privilege arising from the confidentiality of XPN to the XPN: This exception does not apply
information may be waived in a record, or orally during a where a child protection matter is referred to
proceeding by the mediator and the mediation parties. A mediation by a court or a public agency
privilege arising from the confidentiality of information may participates in the child protection mediation;
likewise be waived by a nonparty participant if the
information is provided by such nonparty participant. f. sought or offered to prove or disprove a claim or
complaint of professional misconduct or
Q: What is the consequence of disclosure of such malpractice filed against mediator in a
confidential information by the parties covered by the rule? proceeding; or
g. sought or offered to prove or disprove a claim of
A: A person who discloses confidential information shall be complaint of professional misconduct of
precluded from asserting the privilege to bar disclosure of malpractice filed against a party, nonparty
the rest of the information necessary to a complete participant, or representative of a party based
understanding of the previously disclosed information. If a on conduct occurring during a mediation.
person suffers loss or damages in a judicial proceeding
against the person who made the disclosure. (b) There is no privilege if a court or administrative agency,
finds, after a hearing in camera, that the party seeking
A person who discloses or makes a representation about a discovery of the proponent of the evidence has shown
mediation is precluded from asserting the privilege to the that the evidence is not otherwise available, that there
extent that the communication prejudices another person in is a need for the evidence that substantially outweighs
the proceeding and it is necessary for the person prejudiced the interest in protecting confidentiality, and the
to respond to the representation of disclosure. mediation communication is sought or offered in:
Q: The rule is that if a party has been prejudiced in that a. a court proceeding involving a crime or
situation, the recourse will be an objection as to the felony; or
A: Yes. At the request of a mediation party, an individual who Q: How is a mediated settlement agreement prepared?
is requested to serve as mediator shall disclose his/her
qualifications to mediate a dispute. A: A settlement agreement following successful mediation
shall be prepared by the parties with the assistance of their
Q: Suppose that the proposed mediator did not disclose any respective counsel, if any, and by the mediator.
of the matters that he is supposed to disclose, and as a
consequence of that, he was appointed as a mediator, Q: Who are required to sign the agreement?
immediately the parties knew such failure to disclose in the
middle of the mediation proceedings, what can the party A: The parties and their respective counsels, if any, shall sign
do? the settlement agreement. The mediator shall certify that
he/she explained the contents of the settlement agreement
A: The party can remove the mediator and substitute another to the parties in a language known to them.
one. Failure of the party to remove the mediator means there
is a waiver. Deposit of the Settlement Agreement
Q: Can the parties ask the mediator to establish his Q: Where should the settlement be deposited?
qualification?
A: If the parties so desire, they may deposit such settlement
A: At the request of a mediation party, an individual who is agreement with the appropriate Clerk of a Regional Trial
requested to serve as mediator shall disclose his/her Court of the place where one of the parties resides.
qualifications to mediate a dispute.
Q: How should the agreement be enforced?
Q: Who should determine the qualifications of the
mediator?
A:
INTERNATIONAL COMMERCIAL ARBITRATION any other quasi-judicial body whether or not such
Adoption of the Model Law on International Commercial appearance is in relation to the arbitration in which he
Arbitration appears.
Q: What is the governing law with regard to International CONFIDENTIALITY OF ARBITRATION PROCEEDINGS
Commercial Arbitration? (Applicable also in Domestic Arbitration)
A: International commercial arbitration shall be governed by Q: What is covered by the confidentiality rule in arbitration
the Model Law on International Commercial Arbitration (the proceedings? May the records of arbitration proceedings be
"Model Law") adopted by the United Nations Commission on published?
International Trade Law on June 21, 1985.
A:
COMMERCIAL ARBITRATION
GR: The arbitration proceedings, including the records,
Q: When is an arbitration considered as commercial? evidence and the arbitral award, shall be considered
confidential and shall not be published.
A: An arbitration is "commercial" if it covers matters arising
from all relationships of a commercial nature, whether XPN:
contractual or not.
(1) with the consent of the parties, or
Q: What are the matters or transactions considered as (2) for the limited purpose of disclosing to the
commercial? court of relevant documents in cases where
resort to the court is allowed herein.
A: Relationships of a transactions include:
Q: Can the court in which the action or the appeal is pending
a. any trade transaction for the supply or exchange of issue a protective order or prohibit disclosure or
goods or services; information?
b. distribution agreements;
c. construction of works; A: Yes. The court in which the action or the appeal is pending
d. commercial representation or agency; may issue a protective order to prevent or prohibit disclosure
e. factoring; of documents or information containing secret processes,
f. leasing, consulting; developments, research and other information where it is
g. engineering; shown that the applicant shall be materially prejudiced by an
h. licensing; authorized disclosure thereof.
i. investment;
j. financing; REFERRAL TO ARBITRATION
k. banking; (Applicable also in Domestic Arbitration)
l. insurance;
m. joint venture and other forms of industrial or Q: When should the court refer the parties to arbitration?
business cooperation;
n. carriage of goods or passengers by air, sea, rail or A: A court before which an action is brought in a matter
road. which is the subject matter of an arbitration agreement shall:
LEGAL REPRESENTATION IN INTERNATIONAL ARBITRATION a. If at least one party so requests not later that the
(Applicable also in Domestic Arbitration) pre-trial conference; or
b. Upon the request of both parties thereafter
Q: Give the rule with regard to the representation of a party
in international (as well as in mediation and domestic) refer the parties to arbitration unless it finds that the
arbitration? May an alien represent a party in international arbitration agreement is:
arbitration conducted in the Philippines?
a. null and void;
A: Yes. In international arbitration conducted in the b. inoperative; or
Philippines, a party may be presented by any person of his c. incapable of being performed
choice. Provided, that such representative, unless admitted
to the practice of law in the Philippines, shall not be Q: May the courts dismiss the action for arbitration motu
authorized to appear as counsel in any Philippine court, or proprio?
GRANT OF INTERIM MEASURE OF PROTECTION A: A party who does not comply with the order shall be liable
(Applicable also in Domestic Arbitration) for all damages resulting from noncompliance, including all
expenses, and reasonable attorney's fees, paid in obtaining
Q: May the parties request for interim measure of the order's judicial enforcement.
protection in arbitral proceedings? Where should the
request for interim measure of protection be made? Q: What are the interim measures of protection available to
the parties in an arbitration proceeding?
A: It is not incompatible with an arbitration agreement for a
party to request: A: Such interim measures may include but shall not be limited
to:
a. Before constitution of the tribunal, from a Court an
interim measure of protection and for the Court to a. preliminary injuction directed against a party;
grant such measure. b. appointment of receivers or detention;
b. After constitution of the arbitral tribunal and c. preservation, inspection of property that is the
during arbitral proceedings, a request for an interim subject of the dispute in arbitration.
measure of protection or modification thereof, may
be made with the arbitral tribunal or to the extent PLACE OF ARBITRATION
that the arbitral tribunal has no power to act or is
unable to act effectively, the request may be made Q: Where should the arbitration be conducted?
with the Court.
A: The parties are free to agree on the place of arbitration.
Q: In what instances may an interim measure of protection Failing such agreement:
be allowed? a. The place of arbitration shall be in Metro Manila,
unless the arbitral tribunal, having regard to the
A: An interim measure of protection may be granted if circumstances of the case, including the convenience
necessary: of the parties shall decide on a different place of
arbitration.
i. to prevent irreparable loss or injury: b. The arbitral tribunal may, unless otherwise agreed
ii. to provide security for the performance of any by the parties, meet at any place it considers
obligation; appropriate for consultation among its members, for
iii. to produce or preserve any evidence; or hearing witnesses, experts, or the parties, or for
iv. to compel any other appropriate act or omission. inspection of goods, other property or documents.
Q: How should the application for interim or provisional LANGUAGE OF THE ARBITRATION
relief be made? What is the form of such application?
Q: What is the language to be used in arbitration
proceedings?
This agreement or determination, unless otherwise specified Q: Under what instances can a foreign arbitrator or co-
therein, shall apply to any written statement by a party, any arbitrator be appointed?
hearing and any award, decision or other communication by
the arbitral tribunal. A: The Construction Industry Arbitration Commission (CIAC)
shall promulgate rules to allow for the appointment of a
The arbitral tribunal may order that any documentary foreign arbitrator or coarbitrator or chairman of a tribunal a
evidence shall be accompanied by a translation into the person who has not been previously accredited by CIAC:
language or languages agreed upon by the parties. Provided, That:
ARBITRATION OF CONSTRUCTION DISPUTES Q: What is the effect if the dispute is filed in the RTC?
Q: What is the law governing arbitration of construction A: A regional trial court which a construction dispute is filed
disputes? shall, upon becoming aware, not later than the pretrial
conference, that the parties had entered into an arbitration
A: The arbitration of construction disputes shall be governed to be conducted by the CIAC, unless both parties, assisted by
by Executive Order No. 1008, otherwise known as the their respective counsel, shall submit to the regional trial
Constitution Industry Arbitration Law. court a written agreement exclusive for the Court, rather
than the CIAC, to resolve the dispute.
Q: What is the coverage of EO No. 1008?
Foreign Arbitral Award Not Foreign Judgment
A: Construction disputes which fall within the original and
exclusive jurisdiction of the Construction Industry Arbitration A foreign arbitral award when confirmed by a court of a
Commission (the "Commission") shall include those between foreign country, shall be recognized and enforced as a foreign
or among parties to, or who are otherwise bound by, an arbitral award and not a judgment of a foreign court.
arbitration agreement, directly or by reference whether such
parties are: A foreign arbitral award, when confirmed by the regional trial
court, shall be enforced as a foreign arbitral award and not as
a. project owner a judgment of a foreign court.
b. contractor
c. subcontractor A foreign arbitral award, when confirmed by the regional trial
d. quantity surveyor court, shall be enforced in the same manner as final and
executory decisions of courts of law of the Philippines.
A decision of the regional trial court confirming, vacating, Q: Distinguish arbitration clause from submission clause.
setting aside, modifying or correcting an arbitral award may
be appealed to the Court of Appeals in accordance with the A:
rules of procedure to be promulgated by the Supreme Court.
ARBITRATION CLAUSE SUBMISSION CLAUSE
Q: Where should the recognition and enforcement of an A clause in the contract It is an agreement in writing
arbitration agreement or for vacation, setting aside, which says that in event of a and subscribed by the
correction or modification of an arbitral award should be future dispute between the parties, and entered into if
made? parties, such dispute shall be they already have a present
submitted to arbitration. dispute and there is no
A: It shall be filled with the regional trial court: When the contract is brought arbitration clause in their
to court, a party may request contract.
(a) where arbitration proceedings are conducted; the court to suspend the Such admission for
(b) where the asset to be attached or levied upon, or proceedings and bring it to arbitration is deemed a
the act to be enjoined is located; arbitration and the award of consent of the parties to the
(c) where any of the parties to the dispute resides or arbitrator would then be jurisdiction of the RTC of the
has his place of business; or brought to court for province or city where any of
(d) in the National Judicial Capital Region, at the option recognition and execution the parties reside, to enforce
of the applicant. such contract or submission.
a. Any controversy existing between them at the time Q: How should the arbitration be instituted?
of the submission and which may be the subject of
an action (submission clause); or A: An arbitration shall be instituted by:
b. The parties to any contract may in such contract
agree to settle by arbitration a controversy Submission of future controversy
NOTE: The demand shall be served upon any party either in A: He may petition the court for an order directing that such
person or by registered mail. arbitration proceed in the manner provided for in such
agreement.
Appointment of Arbitrator
Single Arbitrator NOTE: Five days notice in writing of the hearing of such
application shall be served either personally or by registered
In the event that the contract between the parties provides mail upon the party in default.
for the appointment of a single arbitrator, the demand shall
be set forth a specific time within which the parties shall If the finding be that no agreement in writing providing for
agree upon such arbitrator. arbitration was made, or that there is no default in the
proceeding thereunder, the proceeding shall be dismissed. If
Three arbitrators the finding be that a written provision for arbitration was
made and there is a default in proceeding thereunder, an
If the contract between the parties provides for the order shall be made summarily directing the parties to
appointment of three arbitrators, one to be selected by each proceed with the arbitration in accordance with the terms
party, the demand shall: thereof.
1. name the arbitrator appointed by the party making Stay of civil action
the demand and;
2. shall require that the party upon whom the demand Q: What is the effect to the court proceeding if any suit or
is made shall within fifteen days after receipt proceeding is brought upon an issue arising out of an
thereof advise in writing the party making such agreement providing for the arbitration thereof?
demand of the name of the person appointed by
the second party; A: In such case, the court in which such suit or proceeding is
3. such notice shall require that the two arbitrators so pending, upon being satisfied that the issue involved in such
appointed must agree upon the third arbitrator suit or proceeding is referable to arbitration, shall stay the
within ten days from the date of such notice. action or proceeding until an arbitration has been had in
accordance with the terms of the agreement.
Q: If a party defaults in answering the demand, what is the
remedy of the aggrieved party? Appointment of arbitrators
Q: Can the arbitrators appointed decline? How should the Discovery of any circumstances that may disqualify the
vacancy be filled? arbitrator
A: Arbitrators appointed under this section shall either accept If, after appointment but before or during hearing, a person
or decline their appointments within seven days of the appointed to serve as an arbitrator shall discover:
receipt of their appointments. In case of declination or the
failure of an arbitrator or arbitrators to duly accept their a. any circumstances likely to create a presumption of
appointments the parties or the court, as the case may be, bias, or
shall proceed to appoint a substitute or substitutes for the b. which he believes might disqualify him as an
arbitrator or arbitrators who decline or failed to accept his or impartial arbitrator
their appointments.
the arbitrator shall immediately disclose such information to
Appointment of additional arbitrators the parties. Thereafter the parties may agree in writing:
Where a submission or contract provides that two or more a. to waive the presumptive disqualifying
arbitrators therein designated or to be thereafter appointed circumstances; or
by the parties, may select or appoint a person as an b. to declare the office of such arbitrator vacant. Any
additional arbitrator, the selection or appointment must be in such vacancy shall be filled in the same manner as
writing. Such additional arbitrator must sit with the original the original appointment was made.
arbitrators upon the hearing.
Challenge of arbitrators
Qualifications of arbitrators
Q: Under what reasons may the arbitrators be challenged
Q: What are the qualifications of the arbitrators to be (vis-à-vis their qualification)? When may the appointment of
appointed? the arbitrators be challenged?
A: Any person appointed to serve as an arbitrator: A: An arbitrator maybe be challenged only if circumstances
exist that give rise to justifiable doubts as to his impartiality
or independence or if he does not possess qualifications a. within five days after appointment if the parties to
agreed to by the parties. A party may challenge an arbitrator the controversy reside within the same city or
appointed by him, or in whose appointment he has province, or
participated, only for reasons of which he becomes aware b. within fifteen days after appointment if the parties
after the appointment has been made. reside in different provinces,
The arbitrators may be challenged only for the reasons set a time and place for the hearing of the matters submitted
mentioned above which may have arisen after the arbitration to them, and must cause notice thereof to be given to each of
agreement or were unknown at the time of arbitration. the parties.
Q: Where should the challenge be made? Should it be with Q: Can the hearing be postponed or adjourned?
the arbitral tribunal or with the RTC?
A: Yes. The hearing can be postponed or adjourned by the
A: The challenge shall be made before them. If they do not arbitrators only by agreement of the parties; otherwise,
yield to the challenge, the challenging party may renew the adjournment may be ordered by the arbitrators upon their
challenge before the Court of First Instance of the province or own motion only at the hearing and for good and sufficient
city in which the challenged arbitrator, or, any of them, if cause.
there be more than one, resides.
NOTE: No adjournment shall extend the hearing beyond the
Q: What is the effect of the challenging incident to the day fixed in the submission or contract for rendering the
arbitral proceedings? award, unless the time so fixed is extended by the written
agreement of the parties to the submission or contract or
A: While the challenging incident is discussed before the their attorneys, or unless the parties have continued with the
court, the hearing or arbitration shall be suspended, and it arbitration without objection to such adjournment.
shall be continued immediately after the court has delivered
an order on the challenging incident. Q: What is the effect of the absence of any party to the
hearing?
Q: What is the consequence of the arbitrator’s non-
performance of his functions? A: The hearing may proceed in the absence of any party who,
after due notice, fails to be present at such hearing or fails to
A: His mandate terminates. The parties may request for his obtain an adjournment thereof.
termination.
Q: Can an award be made solely on default of a party?
Q: Distinguish de facto from de jure arbitrator.
A: No. An award shall not be made solely on the default of a
A: party. The arbitrators shall require the other party to submit
DE JURE DE FACTO such evidence as they may require for making an award.
A person who took over the one who is legally appointed
arbitration proceedings as by the parties Q: Who can represent a party to arbitration?
arbitrator without an express
consent of the parties. A: No one other than a party to said arbitration, or a person
in the regular employ of such party duly authorized in
If without objection by the writing by said party, or a practicing attorney-at-law, shall
parties, the actions of the de be permitted by the arbitrators to represent before him or
facto arbitrator will be them any party to the arbitration.
sustained but if the parties
objected to it, his action will NOTE: Any party desiring to be represented by counsel shall
be withdrawn notify the other party or parties of such intention at least five
days prior to the hearing.
Procedure by the arbitrators
Q: Who can attend the arbitration proceedings?
Subject to the terms of the submission or contract, if any are
specified therein, are arbitrators selected as prescribed A: Persons having a direct interest in the controversy which is
herein must: the subject of arbitration shall have the right to attend any
hearing; but the attendance of any other person shall be at
the discretion of the arbitrators.
Powers of an arbitrator NOTE: The arbitrators may make an ocular inspection of any
matter or premises which are in dispute, but such inspection
Q: What are the powers of an arbitrator? shall be made only in the presence of all parties to the
arbitration, unless any party who shall have received notice
A: The following are the powers of arbitrators: thereof fails to appear, in which event such inspection shall
be made in the absence of such party.
a. To require any person to attend a hearing as a
witness; Time for rendering award
b. To subpoena witnesses and documents when the
relevancy of the testimony and the materiality Unless the parties shall have stipulated by written agreement
thereof has been demonstrated; the time within which the arbitrators must render their
c. To require the retirement of any witness during the award, the written award of the arbitrators shall be rendered
testimony of any other witness; within thirty days after the closing of the hearings or if the
d. To take measures to safeguard and/or conserve any oral hearings shall have been waived, within thirty days
matter which is the subject of the dispute in after the arbitrators shall have declared such proceedings in
arbitration; lieu of hearing closed. This period may be extended by
e. To render a fair, reasonable and impartial award; mutual consent of the parties.
f. To accept pleadings; and
g. To admit evidence Form and contents of award
NOTE: All of the arbitrators appointed in any controversy Q: What should be the form and contents of an arbitral
must attend all the hearings in that matter and hear all the award?
allegations and proofs of the parties; but an award by the
majority of them is valid unless the concurrence of all of A: The arbitral award shall be made in writing and shall be
them is expressly required in the submission or contract to signed by the arbitrator or arbitrators. In arbitral proceedings
arbitrate. with more than one arbitrator, the signatures of the majority
of all members of the arbitral tribunal shall suffice, provided
Hearing by the arbitrators that the reason for any omitted signature is stated. The
award shall state the reasons upon which it is based, unless
Arbitrators may, at the commencement of the hearing, ask the parties have agreed that no reasons are to be given. The
both parties for brief statements of the issues in controversy award shall state its date and the place or arbitration. After
and/or an agreed statement of facts. Thereafter the parties the award is made, a copy signed by the arbitrators shall be
may offer such evidence as they desire, and shall produce delivered to each party.
such additional evidence as the arbitrators shall require or
deem necessary to an understanding and determination of NOTE: In the event that the parties to an arbitration have,
the dispute. during the course of such arbitration, settled their dispute,
they may request of the arbitrators that such settlement be
Q: In hearing the parties and admitting their evidence, is the embodied in an award which shall be signed by the
tribunal bound by the Rules of Evidence? arbitrators.
Q: Can the arbitrator act as a mediator in an arbitration
A: The arbitrators shall be the sole judge of the relevancy and proceeding?
materiality of the evidence offered or produced, and shall not
be bound to conform to the Rules of Court pertaining to A: No. No arbitrator shall act as a mediator in any proceeding
evidence. in which he is acting as arbitrator.
Arbitrators shall receive as exhibits in evidence any document Accordingly, unlike a mediator, arbitrators have the power
which the parties may wish to submit and the exhibits shall and authority to render an arbitral award.
be properly identified at the time of submission.
Q: How may an arbitral award be confirmed?
Q: Who shall take possession or custody of the evidence
submitted by the parties? A: At any time within one month after the award is made, any
party to the controversy which was arbitrated may apply to
A: All exhibits shall remain in the custody of the Clerk of Court the court having jurisdiction, as provided in section twenty-
during the course of the arbitration and shall be returned to eight, for an order confirming the award. The court must
the parties at the time the award is made. grant such order unless the award is vacated, modified or
corrected, as prescribed herein. Notice of such motion must confirming, modifying, correcting, or vacating an award, shall
be served upon the adverse party or his attorney. A domestic at the time that such motion is filed with the court for the
arbitral award shall be enforced in the same manner as final entry of judgment thereon also file the following papers with
and executory decisions of the RTC. the Clerk of Court;
(a) The submission, or contract to arbitrate; the
Vacating an award appointment of the arbitrator or arbitrators; and
each written extension of the time, if any, within
Q: What are the grounds for vacating award? which to make the award.
(b) A verified of the award.
A: In any one of the following cases, the court must make an (c) Each notice, affidavit, or other paper used upon
order vacating the award upon the petition of any party to the application to confirm, modify, correct or vacate
the controversy when such party proves affirmatively that in such award, and a copy of each of the court upon
the arbitration proceedings: such application.
UNCITRAL Model Law on International Commercial A: No. foreign arbitral awards are not like foreign court
Arbitration judgments. They may be enforced under Sec. 44 of R.A 9285:
A: When a person is approached in connection with his Q: What is the nature of the action for recognition and
possible appointment as an arbitrator, he shall disclose any enforcement of a foreign award? Where should it be filed?
circumstances likely to give rise to justifiable doubts as to his
impartiality or independence. An arbitrator, from the time of A: Proceedings for recognition and enforcement of an
his appointment and throughout the arbitral proceedings, arbitration agreement or for vacation, setting aside,
shall without delay disclose any such circumstances to the correction or modification of an arbitral award, and any
parties unless they have already been informed of them by application with a court for arbitration assistance and
him. supervision shall be deemed as special proceedings and shall
be filled with the regional trial court (i) where arbitration
An arbitrator may be challenged only if circumstances exist proceedings are conducted; (ii) where the asset to be
that give rise to justifiable doubts as to his impartiality or attached or levied upon, or the act to be enjoined is located;
independence, or if he does not possess qualifications agreed (iii) where any of the parties to the dispute resides or has his
to by the parties. A party may challenge an arbitrator place of business; or (iv) in the National Judicial Capital
appointed by him, or in whose appointment he has Region, at the option of the applicant (Section 47 of R.A.
participated, only for reasons of which he becomes aware 9285).
after the appointment has been made (Article 12 of
UNCITRAL). Grounds for refusing recognition or enforcement
Q: What is the form and contents of an arbitral award under
the Model Law (see Sec. 20 of R.A. 876)? Q: When may a foreign award be refused recognition and
enforcement in our jurisdiction?
A: The award shall be made in writing and shall be signed by
the arbitrator or arbitrators. In arbitral proceedings with A:
more than one arbitrator, the signatures of the majority of all
members of the arbitral tribunal shall suffice, provided that 1. At the request of the party against whom it is
the reason for any omitted signature is stated. The award invoked, if that party furnishes to the competent
shall state the reasons upon which it is based, unless the court where recognition or enforcement is sought
parties have agreed that no reasons are to be given. The proof that:
award shall state its date and the place of arbitration. The
award shall be deemed to have been made at that place. a. a party to the arbitration agreement referred to in
After the award is made, a copy signed by the arbitrators article 7 was under some incapacity; or the said
shall be delivered to each party (Article 31 of the Model Law). agreement is not valid under the law to which the
parties have subjected it or, failing any indication
Q: Can a foreign award be enforced in the Philippines under thereon, under the law of the country where the
the Rules of Court on the recognition and enforcement award was made; or
judgment? b. the party against whom the award is invoked was
not given proper notice of the appointment of an
WHEREAS, it is of vital necessity that continued growth Q: State the jurisdiction of the CIAC.
towards national goals shall not be hindered by problems
arising from, or connected with, the construction industry; A:
WHEREAS, there is a need to establish an arbitral machinery Sec. 4. Jurisdiction. The CIAC shall have original and exclusive
to settle to such disputes expeditiously in order to maintain jurisdiction over disputes arising from, or connected with,
and promote a healthy partnership between the government contracts entered into by parties involved in construction in
and the private sector in the furtherance of national the Philippines:
development goals;
a. whether the dispute arises before or
WHEREAS, Presidential Decree No. 1746 created the b. after the completion of the contract, or
Construction Industry Authority of the Philippine (CIAP) to c. after the abandonment or breach thereof.
exercise centralized authority for the optimum development d. These disputes may involve government or
of the construction industry and to enhance the growth of e. private contracts
the local construction industry;
Q: What is the requisite for the CIAC to acquire jurisdiction? 4) To direct its officers and employees to perform such
functions as may be assigned to them from time to
A: For the Board to acquire jurisdiction, the parties to a time.
dispute must agree to submit the same to voluntary
arbitration. Compensation
Q: What matters may be covered by the jurisdiction of the Q: How are the members of the CIAC compensated?
CIAC?
A:
A: The jurisdiction of the CIAC may include but is not limited
to: Sec. 7. Compensation of the Commission. The members of
1
a. violation of specifications for materials and the Commission shall receive such per diems [per day] and
workmanship; allowances as may be fixed by the CIAP from time to time.
b. violation of the terms of agreement;
c. interpretation and/or application of contractual time Term of office
and delays;
d. maintenance and defects; Q: What is the term of office of the members of the CIAC?
e. payment, default of employer or contractor and
changes in contract cost. A:
Q: What matter is excluded from the coverage? Sec. 8. Term. The term of office of the members of the
Commission shall be six (6) years; provided, however, that
A: Excluded from the coverage of this law are disputes arising of the Commission members first appointed, the chairman
from employer-employee relationships which shall continue shall hold office for six years; the other member for four (4)
to be covered by the Labor Code of the Philippines. years; and the third for two (2) years.
Composition and functions of the CIAC Q: What is the rule in case of vacancy?
Q: Discuss the composition of the CIAC? A: The appointment to any vacancy in the Commission shall
only be for the unexpired portion of the term of the
A: predecessor.
Q: What are the functions of the CIAC? Q: How are the deliberations of the Commission be arrived?
Q: Who shall have the authority to appoint? Q: What are the qualities that an arbitrator shall possess?
Authority to collect fees A: They shall not be permanently employed with the CIAC.
Instead, they shall render services only when called to
Q: Does CIAC have the authority to collect fees? arbitrate. For each dispute they settle, they shall be given
fees (Sec. 14).
A: Yes. The Commission is empowered to:
a. determine and collect fees, deposits, costs of Appointment of experts (Sec. 15)
arbitration, as well as administrative and other
charges as may be necessary in the performance of Q: When can the CIAC appoint experts?
its functions and responsibilities.
b. The CIAC is also authorized to use its receipts and A: The services of technical or legal experts may be utilized in
deposits of funds to finance its operations subject to the settlement of disputes if requested by:
the approval of the PDCB, the provisions of any law a. any of the parties or
to the contrary notwithstanding (Sec. 13). b. by the Arbitral Tribunal
c. both of the parties (Sec. 15)
Arbitrators (Sec. 14)
Q: Is there a need to confirm the appointment of the
Q: How many arbitrators are required to settle a dispute? experts?
A: Arbitrators. A sole arbitrator or three arbitrators may A: If the request for an expert is done by either or by both of
settle a dispute (Sec. 14). the parties, it is necessary that the appointment of the expert
be confirmed by the Arbitral Tribunal (Sec. 15).
Q: What is the effect if the parties agree that the dispute
shall be settled by a sole arbitrator? Expenses
A: Where the parties agree that the dispute shall be settled Q: Who shall shoulder the expenses for the services of an
by a sole arbitrator, they may, by agreement, nominate him expert?
from the list of arbitrators accredited by the CIAC for
appointment and confirmation (Sec. 14). A: Whenever the parties request for the services of an expert,
they shall equally shoulder the expert's fees and expenses,
Q: What if they failed to agree as to the arbitrator? half of which shall be deposited with the Secretariat before
the expert renders service. When only one party makes the
A: If the parties fail to agree as to the arbitrator, the CIAC request, it shall deposit the whole amount required (Sec. 15).
taking into consideration the complexities and intricacies of
the dispute/s has the option to appoint a single arbitrator or Arbitration expenses (Sec. 16)
an Arbitral Tribunal (Sec. 14).
Q: What are included in the arbitration expenses?
A: Arbitration expenses shall include: Q: When should the CIAC make a report?
1. filing fee;
2. administrative charges, A: The Commission shall within three (3) months after the
3. arbitrator's fees; end of the fiscal year, submit its annual report to the CIAP. It
4. fee and expenses of the expert, and shall, likewise, submit such periodic reports as it may be
5. others which may be imposed by the CIAC (Sec. 16). required from time to time.
Q: How are the administrative charges and the arbitrator’s Finality of the awards (Sec. 19)
fees shall be computed?
Q: What is the nature of an arbitral award made by the
A: The administrative charges and the arbitrator's fees shall CIAC?
be computed on the basis of percentage of the sum in
dispute to be fixed in accordance with the Table of A:
Administrative Charges and Arbitrator's Fees (Sec. 16).
GR: The arbitral award shall be binding upon the parties. It
Deposit to cover arbitration expenses (Sec. 17) shall be final and inappealable
Q: What should be the amount of the deposit? XPN: Except on questions of law which shall be appealable to
the Supreme Court.
A:
Execution and enforcement of awards
Sec. 17. Deposit to Cover Arbitration Expenses. The CIAC shall
be authorized to fix the amount to be deposited which must Sec. 20. Execution and Enforcement of Awards. As soon as a
be equivalent to the expected arbitration expenses. Xxx decision, order to award has become final and executory, the
Arbitral Tribunal or the single arbitrator with the occurrence
Q: To whom shall the deposit be paid? of the CIAC shall:
A: Payment shall either be: Sec. 21. Rule-Making Power. The CIAC shall formulate and
a. shared equally by the parties or adopt necessary rules and procedures for construction
b. paid by any of them. arbitration.
Q: What if one party fails to contribute his share in the Republic Act No. 9285
deposit? Alternative Dispute Resolution Act of 2004
CHAPTER 6 - ARBITRATION OF CONSTRUCTION DISPUTES
A: If one party fails to contribute his share in the deposit, the
other party must pay in full. Q: What law governs the arbitration concerning the
construction disputes?
Q: What if both parties fail to tender the required deposit?
A:
A: If both parties fail to tender the required deposit, the case
shall be considered dismissed but the parties shall still be SEC. 34. Arbitration of Construction Disputes: Governing
liable to pay one half (1/2) of the agreed administrative Law. - The arbitration of construction disputes shall be
charge. governed by Executive Order No. 1008, otherwise known as
the Constitution Industry Arbitration Law.
Reports by the CIAC (Sec. 18)
A: Construction disputes shall fall within the original and 1. the dispute is a construction dispute in which one
exclusive jurisdiction of the Construction Industry Arbitration party is an international party
Commission (Sec. 35). 2. the person to be appointed agreed to abide by the
arbitration rules and policies of CIAC;
Coverage of the law 3. he/she is either coarbitrator upon the nomination of
the international party; or he/she is the common
Q: Under Sec. 35, discuss the coverage of the law? choice of the two CIAC-accredited arbitrators first
appointed one of whom was nominated by the
A: It shall include those between or among parties to, or who international party; and
are otherwise bound by, an arbitration agreement, directly or 4. the foreign arbitrator shall be of different nationality
by reference whether such parties are project owner, from the international party.
contractor, subcontractor, quantity surveyor, bondsman or
issuer of an insurance policy in a construction project. Other applicable provisions
Q: Who has jurisdiction in case the construction dispute is SEC. 38. Applicability to Construction Arbitration. - The
one of a commercial nature? provisions of Sections 17 (d) of Chapter 2, and Section 28 and
29 of this Act shall apply to arbitration of construction
A: The Commission shall continue to exercise original and disputes covered by this Chapter.
exclusive jurisdiction over construction disputes although the
arbitration is "commercial" pursuant to Section 21 of this Act. SEC. 17. Enforcement of Mediated Settlement Agreement. - The mediation
shall be guided by the following operative principles:
SEC. 21. Commercial Arbitration. - An arbitration is "commercial" if it covers (d) The parties may agree in the settlement agreement that the mediator
matters arising from all relationships of a commercial nature, whether shall become a sole arbitrator for the dispute and shall treat the settlement
contractual or not. Relationships of a transactions: any trade transaction for agreement as an arbitral award which shall be subject to enforcement under
the supply or exchange of goods or services; distribution agreements; Republic Act No. 876, otherwise known as the Arbitration Law,
construction of works; commercial representation or agency; factoring; notwithstanding the provisions of Executive Order No. 1008 for mediated
leasing, consulting; engineering; licensing; investment; financing; banking; dispute outside of the CIAC.
insurance; joint venture and other forms of industrial or business
cooperation; carriage of goods or passengers by air, sea, rail or road. SEC. 28. Grant of Interim Measure of Protection. –
a. It is not incompatible with an arbitration agreement for a party to
request, before constitution of the tribunal, from a Court an
Q: How are arbitrators chosen? interim measure of protection and for the Court to grant such
measure. After constitution of the arbitral tribunal and during
A: arbitral proceedings, a request for an interim measure of
protection or modification thereof, may be made with the arbitral
tribunal or to the extent that the arbitral tribunal has no power to
SEC. 36. Authority to Act as Mediator or Arbitrator. - By act or is unable to act effectively, the request may be made with
written agreement of the parties to a dispute, an arbitrator the Court. The arbitral tribunal is deemed constituted when the
may act as mediator and a mediator may act as arbitrator. xxx sole arbitrator or the third arbitrator who has been nominated,
has accepted the nomination and written communication of said
nomination and acceptance has been received by the party
Q: May the parties agree that the settlement be in the form making request.
of an arbitral award? b. The following rules on interim or provisional relief shall be
observed:
1. Any party may request that provision relief be granted
A: The parties may also agree in writing that, following a
against the adverse party:
successful mediation, the mediator shall issue the settlement 2. Such relief may be granted:
agreement in the form of an arbitral award (Sec. 36). (i) to prevent irreparable loss or injury:
(ii) to provide security for the performance
of any obligation;
Appointment of foreign arbitrator
(iii) to produce or preserve any evidence; or
(iv) to compel any other appropriate act or
SEC. 37. Appointment of Foreign Arbitrator. - The omission.
Construction Industry Arbitration Commission (CIAC) shall 3. The order granting provisional relief may be conditioned
upon the provision of security or any act or omission
promulgate rules to allow for the appointment of a foreign
specified in the order.
arbitrator or co-arbitrator or chairman of a tribunal a person 4. Interim or provisional relief is requested by written
who has not been previously accredited by CIAC. application transmitted by reasonable means to the Court or
arbitral tribunal as the case may be and the party against
whom the relief is sought, describing in appropriate detail
Q: What are the requisites to allow the appointment of a
the precise relief, the party against whom the relief is
foreign arbitrator or co-arbitrator or chairman of a tribunal? requested, the grounds for the relief, and evidence
supporting the request.
SEC. 29. Further Authority for Arbitrator to Grant Interim Measure of SEC. 41. Vacation Award. - A party to a domestic arbitration
Protection. - Unless otherwise agreed by the parties, the arbitral tribunal may question the arbitral award with the appropriate
may, at the request of a party, order any party to take such interim measures regional trial court in accordance with the rules of
of protection as the arbitral tribunal may consider necessary in respect of the
procedure to be promulgated by the Supreme Court only on
subject matter of the dispute following the rules in Section 28, paragraph 2.
Such interim measures may include but shall not be limited to preliminary those grounds enumerated in Section 25 of Republic Act No.
injuction directed against a party, appointment of receivers or detention, 876. Any other ground raised against a domestic arbitral
preservation, inspection of property that is the subject of the dispute in award shall be disregarded by the regional trial court.
arbitration. Either party may apply with the Court for assistance in
implementing or enforcing an interim measures ordered by an arbitral
tribunal. Q: Under Sec. 25 of RA 876, what are the grounds for the
modification of the award?
Duty of the court to dismiss (Sec. 39)
A: In any one of the following cases, the court must make an
Q: What is the duty of the court in case a construction order modifying or correcting the award, upon the
dispute has been filed before it? application of any party to the controversy which was
arbitrated:
A: A regional trial court which a construction dispute is filed 1. Where there was an evident miscalculation of
shall, upon becoming aware, not later than the pretrial figures, or an evident mistake in the description of
conference, that the parties had entered into an arbitration any person, thing or property referred to in the
to be conducted by the CIAC, unless both parties, assisted by award; or
their respective counsel, shall submit to the regional trial 2. Where the arbitrators have awarded upon a matter
court a written agreement exclusive for the Court, rather not submitted to them, not affecting the merits of
than the CIAC, to resolve the dispute. the decision upon the matter submitted; or
3. Where the award is imperfect in a matter of form
not affecting the merits of the controversy, and if it
had been a commissioner's report, the defect could
CHAPTER 7 - JUDICIAL REVIEW OF ARBITRAL AWARDS have been amended or disregarded by the court.
A. DOMESTIC AWARDS 4. The order may modify and correct the award so as to
effect the intent thereof and promote justice
SEC. 40. Confirmation of Award. - The confirmation of a between the parties.
domestic arbitral award shall be governed by Section 23 of
R.A. 876.
Confirmation of award
Q: What court has jurisdiction to confirm the award? Q: What will govern the recognition and enforcement of
arbitral awards?
A: The confirmation of a domestic award shall be made by
the regional trial court in accordance with the Rules of A: The New York Convention shall govern the recognition and
Procedure to be promulgated by the Supreme Court. enforcement of arbitral awards covered by the said
Convention (Sec. 42, Application of the New York Convention).
Q: Should the CIAC arbitral award be confirmed to be
executory?
Facultad de Derecho Civil 22
UNIVERSITY OF SANTO TOMAS
NOTES ON ALTERNATIVE DISPUTE RESOLUTION
Kenneth & King Hizon (3A) _____________________________________________
Q: Where should the recognition and enforcement of such Q: May the court recognize enforce a non-convention award
arbitral award be made? as a convention award?
A: The recognition and enforcement of such arbitral awards A: The Court may, grounds of:
shall be filled with regional trial court in accordance with the a. comity and
rules of procedure to be promulgated by the Supreme Court. b. reciprocity, recognize and enforce a non-convention
award as a convention award.
Requirements
Foreign arbitral award not a foreign judgment (Sec. 44)
Q: What are the requirements for the application of the
enforcement of the award? Q:What is the effect when a foreign arbitral award is
confirmed by a court of foreign country?
A:
A: A foreign arbitral award when confirmed by a court of a
1. the party relying on the award or applying for its foreign country, shall be recognized and enforced as a foreign
enforcement shall file with the court the original or arbitral award and not a judgment of a foreign court.
authenticated copy of the award and
2. the arbitration agreement Q: How can a foreign arbitral award confirmed by the
regional trial court be enforced?
NOTE: If the award or agreement is not made in any of the
official languages, the party shall supply a duly certified A: It shall be enforced in the same manner as final and
translation thereof into any of such languages. executory decisions of courts of law of the Philippines.
Q: What if the application is for the rejection or suspension A: A party to a foreign arbitration proceeding may oppose an
of the enforcement of the award? application for recognition and enforcement of the arbitral
award in accordance with the procedural rules to be
A: If the application for rejection or suspension of promulgated by the Supreme Court only on those grounds
enforcement of an award has been made, the regional trial enumerated under Article V of the New York Convention. Any
court may, if it considers it proper, vacate its decision and other ground raised shall be disregarded by the regional trial
may also, on the application of the party claiming recognition court.
or enforcement of the award, order the party to provide
appropriate security. Q: Under the Article V of the New York Convention, what
are the grounds that can be raised for the opposition?
Recognition and Enforcement of Foreign Arbitral Awards
Not Covered by the New York Convention A:
1. Recognition and enforcement of the award may be
Q: What is the rule regarding the recognition and refused, at the request of the party against whom it is
enforcement of foreign arbitral awards not covered by the invoked, only if that party furnishes to the competent
New York Convention? authority where the recognition and enforcement is sought,
proof that:
A:
a. The parties to the agreement referred to in article II
SEC. 43. Recognition and Enforcement of Foreign Arbitral were, under the law applicable to them, under some
Awards Not Covered by the New York Convention. - The incapacity, or the said agreement is not valid under
recognition and enforcement of foreign arbitral awards not the law to which the parties have subjected it or,
covered by the New York Convention shall be done in failing any indication thereon, under the law of the
accordance with procedural rules to be promulgated by the country where the award was made; or
Supreme Court. The Court may, grounds of comity and b. The party against whom the award is invoked was
reciprocity, recognize and enforce a nonconvention award not given proper notice of the appointment of the
as a convention award. arbitrator or of the arbitration proceedings or was
otherwise unable to present his case; or
c. The award deals with a difference not contemplated for vacation, setting aside, correction or modification of an
by or not falling within the terms of the submission arbitral award?
to arbitration, or it contains decisions on matters
beyond the scope of the submission to arbitration, A: Proceedings for recognition and enforcement of an
provided that, if the decisions on matters submitted arbitration agreement or for vacation, setting aside,
to arbitration can be separated from those not so correction or modification of an arbitral award, and any
submitted, that part of the award which contains application with a court for arbitration assistance and
decisions on matters submitted to arbitration may supervision shall be deemed as special proceedings.
be recognized and enforced; or
d. The composition of the arbitral authority or the Q: Where should the same be filed?
arbitral procedure was not in accordance with the
agreement of the parties, or, failing such agreement, A: It shall be filled with the regional trial court:
was not in accordance with the law of the country
where the arbitration took place; or a. where arbitration proceedings are conducted;
e. The award has not yet become binding, on the b. where the asset to be attached or levied upon, or
parties, or has been set aside or suspended by a the act to be enjoined is located;
competent authority of the country in which, or c. where any of the parties to the dispute resides or
under the law of which, that award was made. has his place of business; or
d. in the National Judicial Capital Region, at the option
2. Recognition and enforcement of an arbitral award may also of the applicant.
be refused if the competent authority in the country where
recognition and enforcement is sought finds that: Notice of proceeding to parties (Sec. 48)
a. The subject matter of the difference is not capable SEC. 48. Notice of Proceeding to Parties. - In a special
of settlement by arbitration under the law of that proceeding for recognition and enforcement of an arbitral
country; or award, the Court shall send notice to the parties at their
b. The recognition or enforcement of the award would address of record in the arbitration, or if any party cannot
be contrary to the public policy of that country. be served notice at such address, at such party's last known
address. The notice shall be sent at least fifteen (15) days
Appeal from court on decisions on arbitral awards before the date set for the initial hearing of the application.
may be appealed to the Court of Appeals in accordance with Q: State the application or scope of this convention?
the rules of procedure to be promulgated by the Supreme
Court. A: This Convention shall apply to the recognition and
enforcement of arbitral awards made in the territory of a
Q: What is required from the party who appeals from the State other than the State where the recognition and
judgment of the court confirming an arbitral award? enforcement of such awards are sought, and arising out of
differences between persons, whether physical or legal. It
A: The losing party who appeals from the judgment of the shall also apply to arbitral awards not considered as domestic
court confirming an arbitral award shall required by the awards in the State where their recognition and enforcement
appealant court to post counterbond executed in favor of the are sought.
prevailing party equal to the amount of the award in
accordance with the rules to be promulgated by the Supreme Q: What do you mean by arbitral awards under the
Court (Sec. 46). Convention?
Venue and jurisdiction (Sec. 47) A: It shall include not only awards made by arbitrators
appointed for each case but also those made by permanent
Q: What is the character of the proceedings for the arbitral bodies to which the parties have submitted.
recognition and enforcement of an arbitration agreement or
Q: What does agreement in writing mean? Q: Under what instances can the recognition and
enforcement of the award be refused?
A: The term "agreement in writing" shall include an arbitral
clause in a contract or an arbitration agreement, signed by A: Recognition and enforcement of the award may be
the parties or contained in an exchange of letters or refused, at the request of the party against whom it is
telegrams. invoked, only if that party furnishes to the competent
authority where the recognition and enforcement is sought,
Q: When can the court refer the parties to arbitration? proof that:
A: The court of a Contracting State, when seized of an action (a) The parties to the agreement referred to in article II
in a matter in respect of which the parties have made an were, under the law applicable to them, under some
agreement within the meaning of this article, shall, at the incapacity, or the said agreement is not valid under the
request of one of the parties, refer the parties to arbitration, law to which the parties have subjected it or, failing any
unless it finds that the said agreement is: indication thereon, under the law of the country where
the award was made; or
1. null and void,
2. inoperative or (b) The party against whom the award is invoked was not
3. incapable of being performed. given proper notice of the appointment of the arbitrator
or of the arbitration proceedings or was otherwise
Article III unable to present his case; or
Each Contracting State shall recognize arbitral awards as (c) The award deals with a difference not contemplated
binding and enforce them in accordance with the rules of by or not falling within the terms of the submission to
procedure of the territory where the award is relied upon, arbitration, or it contains decisions on matters beyond
under the conditions laid down in the following articles. the scope of the submission to arbitration, provided that,
There shall not be imposed substantially more onerous if the decisions on matters submitted to arbitration can
conditions or higher fees or charges on the recognition or be separated from those not so submitted, that part of
enforcement of arbitral awards to which this Convention the award which contains decisions on matters
applies than are imposed on the recognition or enforcement submitted to arbitration may be recognized and
of domestic arbitral awards. enforced; or
(e) The award has not yet become binding on the parties, DEFINITIONS AND RULES OF INTERPRETATION (Article 2)
or has been set aside or suspended by a competent
authority of the country in which, or under the law of Q: What is arbitration?
which, that award was made.
A: It means any arbitration whether or not administered by a
2. Recognition and enforcement of an arbitral award may also permanent arbitral institution.
be refused if the competent authority in the country where
recognition and enforcement is sought finds that: Q: What is arbitral tribunal?
(a) The subject matter of the difference is not capable of A: It means the sole arbitrator or a panel of arbitrators.
settlement by arbitration under the law of that country;
or Q: What is the rule of interpretation with regard to this law?
Q: Where is the place of business if the party has more than A: It must be in writing.
one place of business?
Q: When is an agreement considered written?
A: It is that which has the closest relationship to the
arbitration agreement. A: An arbitration agreement is in writing if its content is
recorded in any form, whether or not the arbitration
Q: What if the party has no place of business? agreement or contract has been concluded orally, by
conduct, or by other means.
A: If a party does not have a place of business, reference is to
be made to his habitual residence. Arbitration Agreement
A: A court before which an action is brought in a matter Q: What is the disqualification in the appointment of
which is the subject of an arbitration agreement shall, if a arbitrators?
party so requests not later than when submitting his fist
statement on the substance of the dispute, refers the parties A: No person shall be precluded by reason of his nationality
to arbitration. from acting as an arbitrator, unless otherwise agreed by the
parties (Article 11).
Q: Under what instances can the court set aside the
agreement? NOTE: The parties are free to agree on the procedure of
appointing the arbitrator or arbitrators.
A: If the Court finds that the agreement is:
Q: What are the rules in the appointment of arbitrators?
1. Null and void;
2. Inoperative; or A:
3. incapable of being performed (Article 8).
Appointment of 3 arbitrators (Article 11)
Q: Pending the determination of such issue, may the
arbitration proceedings commenced or continued? In an arbitration with three arbitrators, each party shall
appoint one arbitrator, and the two arbitrators thus
A: Where an action referred to in paragraph (1) of this article appointed shall appoint the third arbitrator; if a party fails to
has been brought, arbitral proceedings may nevertheless be appoint the arbitrator within thirty days of receipt of a
commenced or continued, and an award may be made, while request to do so from the other party, or if the two
the issue is pending before the court. arbitrators fail to agree on the third arbitrator within thirty
days of their appointment, the appointment shall be made,
R.A. No. 876 upon request of a party, by the court or other authority
specified in article 6;
NOTE: In our arbitration law, the court proceedings are
suspended: Appointment of sole arbitrator (Article 11)
Section 7. Stay of civil action. - If any suit or In an arbitration with a sole arbitrator, if the parties are
proceeding be brought upon an issue arising out of an unable to agree on the arbitrator, he shall be appointed,
agreement providing for the arbitration thereof, the court in upon request of a party, by the court or other authority
which such suit or proceeding is pending, upon being specified in article 6.
satisfied that the issue involved in such suit or proceeding is
referable to arbitration, shall stay the action or proceeding Q: Under what instances may a party request a court or
until an arbitration has been had in accordance with the other authority to take the necessary measure?
terms of the agreement: Provided, That the applicant, for
the stay is not in default in proceeding with such arbitration. A:
Interim measures by court (a) a party fails to act as required under such procedure,
or
It is not incompatible with an arbitration agreement for a (b) the parties, or two arbitrators, are unable to reach
party to request, before or during arbitral proceedings, from an agreement expected of them under such
a court an interim measure of protection and for a court to procedure, or
grant such measure (Article 9). (c) a third party, including an institution, fails to
perform any function entrusted to it under such
COMPOSITION OF ARBITRAL TRIBUNAL (Article 10) procedure.
Q: What are the rules regarding the number of arbitrators? Q: Is the court decision subject to appeal?
(e) The court shall, in its discretion appoint one or three arbitrators, Q: What if the challenge was unsuccessful?
according to the importance of the controversy involved in any of the
preceding cases in which the agreement is silent as to the number of A: The challenging party may request, within thirty days after
arbitrators.
having received notice of the decision rejecting the
(f) Arbitrators appointed under this section shall either accept or challenge, the court or other authority specified in article 6 to
decline their appointments within seven days of the receipt of their decide on the challenge, which decision shall be subject to no
appointments. In case of declination or the failure of an arbitrator or appeal; while such a request is pending, the arbitral tribunal,
arbitrators to duly accept their appointments the parties or the court, as
including the challenged arbitrator, may continue the arbitral
the case may be, shall proceed to appoint a substitute or substitutes for the
arbitrator or arbitrators who decline or failed to accept his or their proceedings and make an award.
appointments.
Q: What is the effect of the challenge on the proceedings?
Grounds for challenge (Article 12) Should the arbitration proceedings be suspended?
Q: What are the grounds for challenge of arbitrators? A: No, the proceedings shall proceed and can make an award
(Article 13 (3)).
A:
R.A. No. 876
(1) When a person is approached in connection with his
possible appointment as an arbitrator, he shall Section 11. Challenge of arbitrators. - The arbitrators
disclose any circumstances likely to give rise to may be challenged only for the reasons mentioned in the
justifiable doubts as to his impartiality or
preceding section which may have arisen after the arbitration Kompetenz Principle or Separability Principle
agreement or were unknown at the time of arbitration.
Q: What is the effect of the decision of the arbitral tribunal
The challenge shall be made before them. regarding the contract on the arbitration clause? Does the
If they do not yield to the challenge, the challenging party invalidation of the contract ipso jure invalidate the
may renew the challenge before the Court of First Instance of arbitration clause?
the province or city in which the challenged arbitrator, or, any
of them, if there be more than one, resides. A: An arbitration clause which forms part of a contract shall
be treated as an agreement independent of the other terms
Q: Under our Arbitration Law, what is the effect of the of the contract. A decision by the arbitral tribunal that the
challenge on the arbitration proceedings? contract is null and void shall not entail ipso jure the invalidity
of the arbitration clause.
A: While the challenging incident is discussed before the
court, the hearing or arbitration shall be suspended, and it Q: When should the issue of jurisdiction be raised?
shall be continued immediately after the court has delivered
an order on the challenging incident. A: A plea that the arbitral tribunal does not have jurisdiction
shall be raised not later than the submission of the statement
Failure or impossibility to act (Art. 14) of defense.
If an arbitrator becomes de jure or de facto unable to NOTE: A party is not precluded from raising such a plea by the
perform his functions or for other reasons fails to act without fact that he has appointed, or participated in the
undue delay, his mandate terminates if he withdraws from appointment of, an arbitrator.
his office or if the parties agree on the termination.
Otherwise, if a controversy remains concerning any of these Q: When should the issue of the tribunal exceeding its scope
grounds, any party may request the court or other authority be raised?
specified in article 6 to decide on the termination of the
mandate, which decision shall be subject to no appeal. A: A plea that the arbitral tribunal is exceeding the scope of
its authority shall be raised as soon as the matter alleged to
Q: Does the withdrawal from office of the arbitrator or if the be beyond the scope of its authority is raised during the
parties agree to terminate his/her mandate, mean arbitral proceedings. The arbitral tribunal may, in either case,
acceptance of the validity of the ground? admit a later plea if it considers the delay justified.
A: The arbitral tribunal may rule on its own jurisdiction, A: An interim measure is any temporary measure, whether in
including any objections with respect to the existence or the form of an award or in another form, by which, at any
validity of the arbitration agreement. time prior to the issuance of the award by which the dispute
is finally decided, the arbitral tribunal orders a party to:
(a) Maintain or restore the status quo pending (a) Harm not adequately reparable by an award of damages
determination of the dispute; is likely to result if the measure is not ordered, and such
(b) Take action that would prevent, or refrain from harm substantially outweighs the harm that is likely to
taking action that is likely to cause, current or result to the party against whom the measure is directed
imminent harm or prejudice to the arbitral process if the measure is granted; and
itself; (b) There is a reasonable possibility that the requesting
(c) Provide a means of preserving assets out of which a party will succeed on the merits of the claim. The
subsequent award may be satisfied; or determination on this possibility shall not affect the
(d) Preserve evidence that may be relevant and material discretion of the arbitral tribunal in making any
to the resolution of the dispute. subsequent determination.
Q: What are the conditions to be satisfied by the requesting Q: Is the preliminary order subject to enforcement by the
party before the interim measure be granted? court?
A:
A: No, a preliminary order shall be binding on the parties but caused by the measure or the order to any party if the
shall not be subject to enforcement by a court. arbitral tribunal later determines that, in the circumstances,
the measure or the order should not have been granted. The
Q: Does it constitute an award? arbitral tribunal may award such costs and damages at any
point during the proceedings.
A: No, such a preliminary order does not constitute an award.
Recognition and enforcement of interim measures
Interim measures: (Article 17 H)
Modification, suspension, termination (Article 17 D)
Q: What is the rule regarding the Recognition and
Q: May the court or tribunal modify. Suspend or terminate enforcement of interim measures?
an interim measure?
A: An interim measure issued by an arbitral tribunal shall be
A: The arbitral tribunal may modify, suspend or terminate an recognized as binding and, unless otherwise provided by the
interim measure or a preliminary order it has granted, upon arbitral tribunal, enforced upon application to the competent
application of any party or, in exceptional circumstances and court, irrespective of the country in which it was issued,
upon prior notice to the parties, on the arbitral tribunal’s own subject to the provisions of article 17.
initiative.
NOTE: The party who is seeking or has obtained recognition
Provision of security (Article 17 E) or enforcement of an interim measure shall promptly inform
the court of any termination, suspension or modification of
Q: Is security required in case of provisional remedies? that interim measure.
A: The arbitral tribunal may require the party requesting an Grounds for refusing recognition or enforcement
interim measure to provide appropriate security in (Article 17 I)
connection with the measure.
Q: When may the recognition or enforcement of interim
The arbitral tribunal shall require the party applying for a measure be refused?
preliminary order to provide security in connection with the
order unless the arbitral tribunal considers it inappropriate or A: Recognition or enforcement of an interim measure may be
unnecessary to do so. refused only:
Costs and Damages (Article 17 G) 1. he interim measure is incompatible with the powers
conferred upon the court unless the court decides to
Q: What if the other party suffers damages as a reformulate the interim measure to the extent
consequence of the provisional remedy? necessary to adapt it to its own powers and
procedures for the purposes of enforcing that
A: The party requesting an interim measure or applying for a interim measure and without modifying its
preliminary order shall be liable for any costs and damages substance; or
A court shall have the same power of issuing an interim Q: When does the arbitral proceeding commence?
measure in relation to arbitration proceedings, irrespective of
whether their place is in the territory of this State, as it has in A: Unless otherwise agreed by the parties, the arbitral
relation to proceedings in courts. The court shall exercise proceedings in respect of a particular dispute commence on
such power in accordance with its own procedures in the date on which a request for that dispute to be referred to
consideration of the specific features of international arbitration is received by the respondent.
arbitration.
Language of the proceedings (Article 22)
CONDUCT OF ARBITRAL PROCEEDINGS
Q: What should be the language of the proceedings?
Q: How should the parties be treated during the arbitral
proceedings? A: The parties are free to agree on the language or languages
to be used in the arbitral proceedings. Failing such
A: The parties shall be treated with equality and each party agreement, the arbitral tribunal shall determine the language
shall be given a full opportunity of presenting his case (Art. or languages to be used in the proceedings. This agreement
18). or determination, unless otherwise specified therein, shall
apply to any written statement by a party, any hearing and
Q: What rules will govern the conduct of arbitral any award, decision or other communication by the arbitral
proceedings? tribunal.
A: Unless otherwise agreed by the parties, either party may Expert appointed by arbitral tribunal (Article 26)
amend or supplement his claim or defense during the course
of the arbitral proceedings, unless the arbitral tribunal Q: May experts be appointed by the arbitral tribunal?
considers it inappropriate to allow such amendment having
regard to the delay in making it. A: Unless otherwise agreed by the parties, the arbitral
tribunal:
Hearings and written proceedings (Article 24)
a. may appoint one or more experts to report to it on
Q: What should be the form of the hearings? specific c issues to be determined by the arbitral
tribunal;
A: Subject to any contrary agreement by the parties, the b. may require a party to give the expert any relevant
arbitral tribunal shall decide whether: information or to produce, or to provide access to,
any relevant documents, goods or other property for
a. to hold oral hearings for the presentation of his inspection.
evidence or for oral argument, or
b. whether the proceedings shall be conducted on the NOTE: Unless otherwise agreed by the parties, if a party so
basis of documents and other materials. requests or if the arbitral tribunal considers it necessary, the
expert shall, after delivery of his written or oral report,
NOTE: However, unless the parties have agreed that no participate in a hearing where the parties have the
hearings shall be held, the arbitral tribunal shall hold such opportunity to put questions to him and to present expert
hearings at an appropriate stage of the proceedings, if so witnesses in order to testify on the points at issue.
requested by a party.
Court assistance in taking evidence (Article 27)
Q: What is the rule on notice?
The arbitral tribunal or a party with the approval of the
A: The parties shall be given sufficient advance notice of any arbitral tribunal may request from a competent court of this
hearing and of any meeting of the arbitral tribunal for the State assistance in taking evidence.
purposes of inspection of goods, other property or
documents. The court may execute the request within its competence
and according to its rules on taking evidence.
All statements, documents or other information supplied to
the arbitral tribunal by one party shall be communicated to CHAPTER VI. MAKING OF AWARD AND
the other party. Also any expert report or evidentiary TERMINATION OF PROCEEDINGS
document on which the arbitral tribunal may rely in making
its decision shall be communicated to the parties. Rules applicable to substance of dispute Article 28)
Default of a party (Article 25) Q: What are the rules applicable to the substance of the
case?
Q: When may a party be declared in default?
A: An award on agreed terms shall be made in accordance Q: When may the party request the arbitral tribunal to
with the provisions of article 31 and shall state that it is an correct the award?
award. Such an award has the same status and effect as any
other award on the merits of the case. A: Within thirty days of receipt of the award, unless another
period of time has been agreed upon by the parties:
Form and contents of award (Article 31)
a. A party, with notice to the other party, may request
Q: What should be the form of the award? the arbitral tribunal to correct in the award any
errors in computation, any clerical or typographical
A: The award shall be made in writing and shall be signed by errors or any errors of similar nature;
the arbitrator or arbitrators. In arbitral proceedings with
more than one arbitrator, the signatures of the majority of
b. If so agreed by the parties, a party, with notice to (iv) the composition of the arbitral tribunal or the
the other party, may request the arbitral tribunal to arbitral procedure was not in accordance with the
give an interpretation of a specific point or part of agreement of the parties, unless such agreement
the award. was in conflict with a provision of this Law from
which the parties cannot derogate, or, failing such
If the arbitral tribunal considers the request to be justified, it agreement, was not in accordance with this Law; or
shall make the correction or give the interpretation within
thirty days of receipt of the request. The interpretation shall b. the court finds that:
form part of the award.
(i) the subject-matter of the dispute is not capable of
Q: Can the arbitration tribunal correct the error on its own settlement by arbitration under the law of this State;
initiative? or
(ii) the award is in conflict with the public policy of this
A: Yes, the arbitral tribunal may correct any error on its own State.
initiative within thirty days of the date of the award.
NOTE: An application for setting aside may not be made after
NOTE: Unless otherwise agreed by the parties, a party, with three months have elapsed from the date on which the party
notice to the other party, may request, within thirty days of making that application had received the award or, if a
receipt of the award, the arbitral tribunal to make an request had been made under article 33, from the date on
additional award as to claims presented in the arbitral which that request had been disposed of by the arbitral
proceedings but omitted from the award. If the arbitral tribunal.
tribunal considers the request to be justified, it shall make
the additional award within sixty days. Q: Can the court be given the opportunity to resume the
arbitral proceedings?
CHAPTER VII. RECOURSE AGAINST AWARD
A: The court, when asked to set aside an award, may, where
Application for setting aside as exclusive recourse against appropriate and so requested by a party, suspend the setting
arbitral award (Article 34) aside proceedings for a period of time determined by it in
order to give the arbitral tribunal an opportunity to resume
Q: Under what instance may an arbitral award be set aside? the arbitral proceedings or to take such other action as in
the arbitral tribunal’s opinion will eliminate the grounds for
A: An arbitral award may be set aside by the court specified in setting aside.
article 6 only if the party making the application furnishes
proof that: CHAPTER VIII. RECOGNITION AND ENFORCEMENT OF
AWARDS
a. The party making the application furnishes proof that:
Recognition and enforcement (Article 35)
(i) a party to the arbitration agreement referred to in
article 7 was under some incapacity; or the said (1) An arbitral award, irrespective of the country in which it
agreement is not valid under the law to which the was made, shall be recognized as binding and, upon
parties have subjected it or, failing any indication application in writing to the competent court, shall be
thereon, under the law of this State; or enforced subject to the provisions of this article and of
(ii) the party making the application was not given article 36.
proper notice of the appointment of an arbitrator or (2) The party relying on an award or applying for its
of the arbitral proceedings or was otherwise unable enforcement shall supply the original award or a copy
to present his case; or thereof. If the award is not made in an official language
(iii) the award deals with a dispute not contemplated by of this State, the court may request the party to supply a
or not falling within the terms of the submission to translation thereof into such language.
arbitration, or contains decisions on matters beyond
the scope of the submission to arbitration, provided Grounds for refusing recognition or enforcement (Article 36)
that, if the decisions on matters submitted to
arbitration can be separated from those not so Q: When can the award be refused?
submitted, only that part of the award which
contains decisions on matters not submitted to A: Recognition or enforcement of an arbitral award,
arbitration may be set aside; or irrespective of the country in which it was made, may be
refused only:
a. at the request of the party against whom it is Republic Act No. 9285
invoked, if that party furnishes to the competent AN ACT TO INSTITUTIONALIZE THE USE OF AN ALTERNATIVE
court where recognition or enforcement is sought DISPUTE RESOLUTION SYSTEM IN THE PHILIPPINES AND TO
proof that: ESTABLISH THE OFFICE FOR ALTERNATIVE DISPUTE
RESOLUTION, AND FOR OTHER PURPOSES
b. a party to the arbitration agreement referred to in "Alternative Dispute Resolution Act of 2004."
article 7 was under some incapacity; or the said
agreement is not valid under the law to which the CHAPTER 4 - INTERNATIONAL COMMERCIAL ARBITRATION
parties have subjected it or, failing any indication
thereon, under the law of the country where the SEC. 19. Adoption of the Model Law on International
award was made; or Commercial Arbitration
c. the party against whom the award is invoked was International commercial arbitration shall be
not given proper notice of the appointment of an governed by the Model Law on International Commercial
arbitrator or of the arbitral proceedings or was Arbitration (the "Model Law") adopted by the United Nations
otherwise unable to present his case; or Commission on International Trade Law on June 21, 1985
(United Nations Document A/40/17) and recommended
d. the award deals with a dispute not contemplated by approved on December 11, 1985, copy of which is hereto
or not falling within the terms of the submission to attached as Appendix "A".
arbitration, or it contains decisions on matters
beyond the scope of the submission to arbitration, SEC. 20. Interpretation of Model Law
provided that, if the decisions on matters submitted
to arbitration can be separated from those not so Q: How should the Model Law be interpreted?
submitted, that part of the award which contains
decisions on matters submitted to arbitration may A: In interpreting the Model Law, regard shall be had to:
be recognized and enforced; or
a. its international origin and
e. the composition of the arbitral tribunal or the b. to the need for uniformity in its interpretation and
arbitral procedure was not in accordance with the c. resort may be made to the travaux
agreement of the parties or, failing such agreement, preparatories and
was not in accordance with the law of the country d. the report of the Secretary General of the United
where the arbitration took place; or Nations Commission on International Trade Law
dated March 25, 1985 entitled, "International
f. the award has not yet become binding on the parties Commercial Arbitration: Analytical Commentary on
or has been set aside or suspended by a court of the Draft Trade identified by reference number A/CN.
country in which, or under the law of which, that 9/264."
award was made; or
A:
A: Except
SEC. 26. Meaning of "Appointing Authority
1. with the consent of the parties, or
2. for the limited purpose of disclosing to the court of Q: Who is an appointing authority?
relevant documents in cases where resort to the
court is allowed herein. Provided, however, that the A: "Appointing Authority" as used in the Model Law shall
court in which the action or the appeal is pending mean the person or institution named in the arbitration
may issue a protective order to prevent or prohibit agreement as the appointing authority; or the regular
disclosure of documents or information containing arbitration arbitration institution under whose rules the
secret processes, developments, research and other arbitration is agreed to be conducted. Where the parties have
information where it is shown that the applicant agreed to submit their dispute to institutional arbitration
shall be materially prejudiced by an authorized rules, and unless they have agreed to a different procedure,
disclosure thereof. they shall be deemed to have agreed to procedure under
such arbitration rules for the selection and appointment of
arbitrators. In ad hoc arbitration, the default appointment of
an arbitrator shall be made by the National President of the
Integrated Bar of the Philippines (IBP) or his duly authorized Q: What is the form of the application for the interim
representative. measure?
SEC. 27. What Functions May be Performed by Appointing A: Interim or provisional relief is requested by written
Authority application transmitted by reasonable means to the Court or
arbitral tribunal as the case may be and the party against
The functions referred to in Articles 11(3), 11(4), 13(3) and whom the relief is sought, describing in appropriate detail the
14(1) of the Model Law shall be performed by the Appointing precise relief, the party against whom the relief is requested,
Authority, unless the latter shall fail or refuse to act within the grounds for the relief, and evidence supporting the
thirty (30) days from receipt of the request in which case the request.
applicant may renew the application with the Court.
Q: How is the interim measure enforced?
A: A: A party who does not comply with the order shall be liable
for:
a. It is not incompatible with an arbitration agreement
for a party to request, before constitution of the a. all damages resulting from noncompliance,
tribunal, from a Court an interim measure of b. including all expenses, and
protection and for the Court to grant such measure. c. reasonable attorney's fees, paid in obtaining the
b. After constitution of the arbitral tribunal and during order's judicial enforcement.
arbitral proceedings, a request for an interim
measure of protection or modification thereof, may
be made with the arbitral tribunal or to the extent
that the arbitral tribunal has no power to act or is SEC. 29. Further Authority for Arbitrator to Grant Interim
unable to act effectively, the request may be made Measure of Protection
with the Court.
NOTE: Unless otherwise agreed by the parties, the arbitral
Q: When is the arbitral tribunal deemed constituted? tribunal may, at the request of a party, order any party to
take such interim measures of protection as the arbitral
A: The arbitral tribunal is deemed constituted when the sole tribunal may consider necessary in respect of the subject
arbitrator or the third arbitrator who has been nominated, has matter of the dispute following the rules in Section 28,
accepted the nomination and written communication of said paragraph 2. Such interim measures may include but shall not
nomination and acceptance has been received by the party be limited to preliminary injuction directed against a party,
making request. appointment of receivers or detention, preservation,
inspection of property that is the subject of the dispute in
Q: What are the purposes of the interim measures? arbitration. Either party may apply with the Court for
assistance in implementing or enforcing an interim measures
A: Such relief may be granted: ordered by an arbitral tribunal.
A:
REFERENCES