Professional Documents
Culture Documents
NT ADR REVIEWERPage 1
What are the Components of ADR? MEDIATION
Where is the Place of Mediation? What are the duties of a person before
accepting the role of Mediator?
The parties are free to agree on the place of
mediation. Failing such agreement, the place of (1) make an inquiry that is reasonable under the
mediation shall be any place convenient and circumstances to determinate whether there are
appropriate to all parties. (Sec 15) any known facts that a reasonable individual
would consider likely to affect the impartiality of
What is the effect of Agreement to Submit the mediator, including a financial or personal
Dispute to Mediation Under Institutional interest in the outcome of the mediation and any
Rules? existing or past relationship with a party or
foreseeable participant in the mediation; [If any
An agreement to submit a dispute to mediation
disclose as soon as practicable]
by any institution shall include an agreement to
be bound by the internal mediation and
administrative policies of such institution. (2) disclosure to the mediation parties any such
Further, an agreement to submit a dispute to fact known or learned as soon as is practical
mediation under international mediation rule shall before accepting a mediation.
be deemed to include an agreement to have such
rules govern the mediation of the dispute and for (3) At the request of a mediation party, an
the mediator, the parties, their respective individual who is requested to serve as mediator
counsel, and non-party participants to abide by shall disclose his/her qualifications to mediate a
such rules. (Sec 16) dispute. (Sec 13)
In case of conflict between the institutional What are the grounds for which a Mediator
mediation rules and the provisions of this can Withdraw?
Act, which will prevail?
● The party requested
Provisions of ADR 2004 (Sec 16)
● Lacks qualifications, training and experience
How are mediators selected? ● Mediator’s impartiality is in question
● Violation of ethical standards
The parties are given the freedom to select their ● Safety will be jeopardized
mediator and they may request the Office for ● Unable to provide effective services
Alternative Dispute Resolution to provide them ● Conflict of interest
with a list or roster of its certified mediators, and ● Other instances
their resumes. Are Mediation Proceedings Confidential in
Nature?
What are the special qualifications of a
mediator? Yes. All information of evidence is privileged and
confidential in character. (Sec 9)
This Act does not require that a mediator shall
have special qualifications by background or ➢ Confidential Information- any information
profession unless the special qualifications of a relative to the subject of mediation or
mediator are required in the mediation arbitration, expressly intended by the
agreement or by the mediation parties. (Sec 13) source not to be disclosed, or obtained
Can a lawyer participate in Mediation under circumstances that would create a
Proceedings? reasonable expectation on behalf of the
source that the information shall not be
disclosed.
NT ADR REVIEWERPage 3
What are the legal effects of its Confidential 5. Used to approve or disprove
Nature? neglect, abandonment or
1. A party may refuse to disclose and may exploitation
prevent any other person from disclosing 6. Used to sought or complaint
a mediation communication. against misconduct
2. Confidential Information shall not be 7. Non-party base agreement
subject to discovery and shall be
inadmissible in any adversarial ● Exceptions based on Public Policy
proceeding, whether judicial or 8. Court proceeding involving a crime
quasi-judicial, However, evidence or or felony
information that is otherwise admissible or 9. Avoid liability on contracts arising
subject to discovery does not become from mediation.
inadmissible or protected from discovery
solely by reason of its use in a mediation. When is mediation no longer bound by the
(Sec 9) confidential privilege?
● Termination of mediation proceedings
Who are persons that may not be compelled ● Settlement was reached
to disclose confidential information obtained ● Mediation was permitted to be disclosed
during mediation?
Is the Mediator allowed to charge reasonable fees
The following persons involved or previously and costs?
involved in a mediation may not be compelled to Yes, but he is under obligation to fully disclose
disclose confidential information obtained during and explain the basis thereof.
mediation
(1) the parties to the dispute; If the mediator withdraws from the mediation, he
(2) the mediator or mediators; shall return any unearned fee and unused
(3) the counsel for the parties; deposit. He shall not enter into a fee
(4) the non-party participants; arrangement contingent upon the results of the
(5) any persons hired or engaged in connection mediation or the amount of settlement.
with the mediation as secretary, stenographer,
clerk or assistant; and
(6) any other person who obtains or possesses (Sec 12) (Sec 13)
confidential information by reason of his/her
profession. What is the process in enforcing the
(Sec 19) Mediated Settlement Agreement? (ADR
Duties of a Lawyer in Mediation)
Does the Rule on Confidentiality apply to
mediators who were later found impartial?
(a) A settlement agreement following successful
Yes mediation shall be prepared by the parties with
the assistance of their respective counsel, if any,
What are the Exceptions to the Privilege and by the mediator.
against disclosure?
(b) The parties and their respective counsels, if
(Sec 11) any, shall sign the settlement agreement. The
● Exceptions based on agreement, mediator shall certify that he/she explained the
Nature of Proceedings, Crime or contents of the settlement agreement to the
Social Justice parties in a language known to them.
1. Contained in an agreement
evidence by a record authenticated
(c) If the parties agree, they may deposit such
by all parties to agreement
settlement agreement with the appropriate Clerk
2. Made public or required by the
of a Regional Trial Court (a) Where the principal
courts to make it public
place of business in the Philippines of any of the
3. A threat or statement of plan to
parties is located (b) If any of the parties is an
inflict bodily injury
individual, where any of those individuals reside
4. Communication on attempt to
commit a crime
NT ADR REVIEWERPage 4
(c) in the National Capital Judicial Region (Sec INTERNATIONAL COMMERCIAL
17) – not indispensable for the validity thereof. ARBITRATION
How do the parties enforce the settlement What law governs International Commercial
agreement? Arbitration (ICA)?
International commercial arbitration shall be
A petition may be filed by any of the parties with governed by the Model Law on International
the same court, in which case, the court shall Commercial Arbitration (the "Model Law") (Sec
proceed summarily to hear the petition, in 19)
accordance with such rules of procedure as may
be promulgated by the Supreme Court. (Sec 17) What is the coverage of IRR Rules on ICA?
● Applicable only to international commercial
arbitration
Can the mediator thereafter act as the sole
● The rules of procedure for international
arbitrator of the same case?
commercial arbitration provided for under the
ADR act or its IRR may also be applied for
Yes. They shall treat the settlement agreement international commercial arbitration outside
as an arbitral award which shall be subject to the Philippines if they are adopted as rules of
enforcement under Republic Act No. 876, procedure by the parties in the exercise of
otherwise known as the Arbitration Law, their privilege of party – autonomy and self –
notwithstanding the provisions of Executive Order determination
No. 1008 for mediated dispute outside of the ● IRR SHALL BE USED IN DEFAULT:
CIAC. (Sec 19) Applicable only in the absence of or in
default contained in the ff: (1) an
agreement in force between the
Philippines and other state; (2) an
agreement between the parties on the
applicable rules
NT ADR REVIEWERPage 5
Relationships of a transaction: any trade protection and for the Court to grant such
transaction for the supply or exchange of goods measure.
and services; distribution agreements; ● After constitution of the arbitral
construction for works; commercial tribunal and during arbitral
representation or agency; factory leasing; proceedings, a request for an interim
consultancy; engineering; licensing; investing; measure of protection or modification
baking; financing; insurance; joint venture and thereof, may be made with the arbitral
other forms of industrial or business cooperation; tribunal or to the extent that the arbitral
carriage of goods or passage of air, sea, rail or tribunal has no power to act or is unable
road. to act effectively, the request may be
made with the Court.
Who may act as Legal representative in (Sec 28)
International Arbitration?
When is an Arbitral Tribunal deemed
Any person of the parties choice. Must be a constituted?
lawyer to appear as counsel in any Philippine
court, or any other quasi-judicial body (Sec 22) When the sole arbitrator or the third arbitrator
who has been nominated, has accepted the
When may a party refer the case to ICA? nomination and written communication of said
nomination and acceptance has been received by
If at least one party so requests not later than the party making request. (Sec 28)
the pre-trial conference, or upon the request of
both parties thereafter, refer the parties to Grounds for Interim Measure?
arbitration unless it finds that the arbitration
agreement is null and void, inoperative or (i) to prevent irreparable loss or injury:
incapable of being performed. (Sec 24)
(ii) to provide security for the performance of any
What is the Rule on Confidentiality in ICA? obligation;
NT ADR REVIEWERPage 6
documents, shall be held, unless otherwise 2. Possession of the qualifications agreed
determined by the parties at a place upon by the parties
considered appropriate by the arbitral ➢ A party who appointed an arbitrator
tribunal. shall not be allowed to challenge the
(Sec 30) (Art 4.20 IRR) such appointment of the arbitrator
When is the date of commencement of ICA When is the Arbitral tribunal deemed
proceedings? constituted?
● Determined by the parties
● Default- The date on which the request for When the sole arbitrator or last member of the
the dispute to be referred to arbitration is arbitrators who has been appointed has accepted
received by the respondent his nomination and written communication or
said nomination and acceptance has been
What is the Language in ICA? received by the party making the request.
● Parties shall determine the language
● Default – English Rules on Receipt of Communication in ICA
NT ADR REVIEWERPage 8
Recognition Confirmatio Enforcement award, and any application with a court for
n arbitration assistance?
Means by which Judicial Execution and
Philippine courts affirmation of implementatio Regional Trial Court
give legal a domestic n of the
Where is the venue of such proceedings?
acknowledgeme arbitral foreign arbitral
nt to a foreign award award through At the option of the applicant
arbitral award Philippine
and confers For Domestic Legal a.) Where the arbitration proceedings are
upon it the Arbitral Processes. It conducted
capability to be Awards since exists “when a b.) Where the asset to be attached or levied
enforced under there is no plaintiff want upon, or the act to enjoined, is located (as
Philippine law need for courts to in the case of real actions or actions quasi
through Philippine positively in rem)
Philippine Legal courts to give carry out and c.) Where any of the parties to the dispute
Processes arbitral make effective resides or has his place of business (as in
awards in the the case of personal actions
For Foreign rendered in a Philippines a d.) National Capital Judicial region
Arbitral Awards domestic foreign
and Philippine arbitration judgment. What is the nature of Such proceedings?
ICA awards legal
[Special Rules of recognition ➢ Special proceedings except on appeal
Court in ADR] under ➢ Summary in nature- 1.e. hearings shall be
Philippine law conducted principally on the basis of the
apart from affidavits of the parties and their
mere witnesses.
confirmation. ➢ In proceedings for the recognition and
enforcement of ICA and foreign arbitral
awards susceptible of recognition, the
What is a foreign arbitral award? court shall send notice to the parties at
their addresses of record in the
It one rendered in an arbitration whose seat is arbitration, or if any party cannot be
outside the Philippines. Hence an ICA award served with notice at such address, or if
rendered in an arbitral proceeding whose seat is any party cannot be served with notice at
outside the Philippines is essentially a foreign such address, at such party’s last known
arbitral award. address. The notice shall be sent at least
15 days before the date set for initial
What differentiates a Philippine ICA award hearing.
and ordinary foreign arbitral award?
What are the requisites for the recognition
Philippine ICA is susceptible of vacation or setting and enforcement of foreign judgments in
aside by a Philippine court but the award in a the Philippines?
foreign ICA is not susceptible to such and can
only be recognized or refused recognition. 1. Proof of the foreign judgment
2. The judgment must be on a civil or
What is the effect of recognition to a commercial matter
Foreign arbitral award? 3. There must be no lack of jurisdiction, no
want of notice, no collusion, no fraud, no
An ICA award or a foreign arbitral award, when
clear mistake of law or fact
extended recognition by the RTC, shall be
4. The judgment must not contravene a
enforced in the same manner as final and
sound and established public policy of the
executory decisions of courts of law of the
forum
Philippines.
5. The judgment must be res judicata in the
Which court has jurisdiction over state that rendered it
proceedings for recognition and
In recognizing foreign arbitral awards, are
enforcement of ICA and foreign arbitral
the following requisites applicable?
award, vacating or setting aside an ICA
NT ADR REVIEWERPage 9
Not necessarily, the application of which depends claiming recognition or enforcement, order
upon the nature of proceedings leading to the the party seeking rejection or suspension
award Convention, non-convention or as-in to provide appropriate security
convention award.
In case of an as-in convention award the court
Convention award Its recognition and may remit the award to the arbitral
A foreign arbitral award enforcement shall be tribunal if the objections raised may be
made in a state which governed by the New cured or rectified.
is a party to the New York Convention as
York Convention implemented by the 5. Appeals- appealed to the CA in
IRR accordance with the special rules on ADR,
Non Convention It cannot be recognized which shall require the appealing party to
Award or enforced under the post a counter-bond in favor of the
Foreign arbitral award ADR act of 2004 but it prevailing party in the amount of the
made in a state which may be deemed as a award.
is not a party to the presumptive evidence
New york Convention of a right between the Can the right to appeal be waived?
parties in accordance
with Section 48 Rule 39 It can. The right to appeal may be validly waived
of the 1997 Rules of by the agreement or stipulation of the parties
Procedure without prejudice to the judicial review by
As-in convention certiorari under Rule 65 of the Rules of Court.
award
One which is made in a
state which is not a
party to the NY
Convention but which
by reason of comity
and reciprocity may be
recognized as enforced
as if it is a convention
award
NT ADR REVIEWERPage 10
DOMESTIC ARBITRATION Commonwealth Act Numbered One hundred and
three, as amended. (Sec 3)
What are the laws governing domestic
arbitration? What is the Place or Venue of Arbitration of
domestic arbitration?
The Arbitration Law R.A. 876, The Model law (Art.
8, 10, 11, 12, 13, 4, 18, 19), ADR Act on ICA on GR: Determined by the parties
the provisions on:
EXP: Metro Manila, unless the arbitral tribunal
● Sec 22 (Legal Representation in ICA) shall decide on a different place taking into
● Sec 23 (Confidentiality of Arbitration account the circumstances of the case and the
Proceedings) convenience of the parties. (5.19 IRR)
● Sec 24 (Referral to Arbitration)
● Sec 25 (Meaning of Appointing Authority) What language shall be used?
● Sec 27 (What Functions May be performed
by appointing authority) English or Filipino (5.21 IRR)
● Sec 28 (Grant of Interim Measures)
● Sec 29 (Further Authority for Arbitrator to
Is the Rule on Confidentiality applicable in
Grant Measures of Protection)
Domestic Arbitration?
● Sec 30 (Place of Arbitration)
● Sec 31 (Language of Arbitration)
● Sec 32 (Laws Governing Domestic The arbitration, proceedings, records, evidence,
Arbitration) arbitral award and other confidential information
● Sec 33 (Applicability of Domestic are privileged and shall not be published; except:
Arbitration) [i] with the consent of the parties [ii] For the
limited purpose of disclosing to the court relevant
documents where resort to the court is allowed.
IRR act and all other applicable rules to ICA
Rule is the same in ICA
which may be given suppletory application in the
absence of specific applicable provisions.
Rules on Receipt of Written Communications
w/ R.A. 876 The Arbitration Law Rules on Receipt of written communication shall
be governed by the agreement of the parties. In
When is arbitration Domestic? default of such rules and absence of such
agreement, written communications among the
It is domestic if the components of parties’ parties and the arbitrators shall be delivered
places, business, place of arbitration, place of personally, by registered mail or courier service.
performance of a substantial part of the Communication is deemed received:
obligation, and place where the subject matter of
dispute is most closely connected, are all located 1. If it is delivered to the addressee
in the Philippines. personally or at his place of business,
habitual residence or mailing address;
What disputes are covered by Rules on 2. If there is none, if it is delivered by
Domestic Arbitration? registered letter or any other means which
provide a record of the attempt to deliver
it, to the last known place of business,
Commercial and Non-Commercial disputes
habitual residence or mailing address.
provided they are susceptible of arbitration and
do not fall within the exclusive original arbitral To whom shall the written communications
jurisdiction or quasi-judicial agencies. of a party be addressed?
To what controversies and cases is this Act In consonance with prevailing Philippine
not applicable? procedural laws, written communications and
pleadings intended for a party represented by
Those subject to the jurisdiction of the Court of counsel should be addressed to his counsel
Industrial Relations (Now NLRC) or which have
been submitted to it as provided by
NT ADR REVIEWERPage 11
What is the effect if a party fails to object to 4. Subscribed by the party sought to
the other party’s non-compliance with a be charged, or his lawful agent.
non-mandatory rule or any requirement (Sec 4)
under the arbitration agreements?
Who are disqualified to be parties to an
The same is considered as a waiver of objections arbitration agreement?
wherein a party is estopped from questioning
non-compliance or is deemed to have waived his ● Infant
objection if he failed to raise the objection ● Person judicially declared to be
without delay or within the time prescribed incompetent
therefor (30 days default) PROVIDED he knows of 5. Unless with guardian or guardian
such non-compliance. (5.3 IRR) ad litem (Sec 2)
Who may act as Legal representative in When may a party refer the case to
Domestic Arbitration? Domestic Arbitration?
A party may appear by himself or be represented If at least one party so requests not later that the
by any person of the parties choice. Must be a pre-trial conference, or upon the request of both
lawyer to appear as counsel in any Philippine parties thereafter, refer the parties to arbitration
court, or any other quasi-judicial body (5.41 [a] unless it finds that the arbitration agreement is
IRR) null and void, inoperative or incapable of being
performed. (Sec 24) The court’s jurisdiction is
What is the effect if any suit or proceeding stayed.
be brought upon an issue arising out of an
agreement provided for arbitration? What will happen to the arbitration
proceedings if the court proceedings are
continued?
Upon being satisfied that the issue involved in
such suit or proceeding is referrable to
Even while the court proceedings are pending,
arbitration, shall stay the action or proceeding
the arbitration can proceed and an award can be
until an arbitration has been had in accordance
made thereon.
with the terms of the agreement: Provided, That
the applicant, for the stay is not in default in
EXP: Issue involves the challenge to an
proceeding with such arbitration. (Sec 7)
arbitrator. The elevation of the incident to a court
suspends the arbitration.
What are the two types of consent to
arbitrate?
Who may be included in an arbitration
proceeding when the Court action is
1. Pre-causal consent- The parties multi-party, and one or more but not all of
agree in a contract to settle by the parties are parties to the arbitration
arbitration a controversy that will agreement?
arise between them.
2. Present causal consent- such as
The court shall refer those who are parties to the
when the controversy already
arbitration agreement to arbitration, and proceed
exists between the parties at the
with the court action as to those who are not
time of the submission to
bound by the arbitration agreement.
arbitration.
3. It must be in writing
NT ADR REVIEWERPage 12
The commencement is determined by the prior ● Third arbitrator shall be appointed by the
arbitration agreement between the parties 1st and 2nd arbitrator appointed by the
parties.
● In an institutional arbitration where there ● Default in case the other party fails to
is no prior arbitration agreement – it is appoint or refuses to appoint: Appointed
commenced in accordance with the by the National President of the IBP
arbitration rules of the institutional ● In case the national president of the IBP
arbitrator fails to appoint then resort to the courts
● In an ad hoc arbitration where there is may be had.
prior arbitration agreement – it is
commenced upon the delivery by the What are the Grounds for challenging an
claimant to the respondent of a demand appointment of an arbitrator?
for arbitration.
● In case of default- where there is no prior [i] Circumstances exists that give rise to
arbitration agreement the same is justifiable doubt as to his impartiality or
reckoned from the date when the other independence
party agreed to submit the dispute to
arbitration. [ii] He does not possess the qualifications
provided for under the law or agreed to by the
What are the Qualifications of Arbitrators? parties
What are the grounds for disqualification of How may the appointment of arbitrators be
arbitrators? challenged?
● No person appointed to serve as an The arbitrators may be challenged only for the
arbitrator shall be related by blood or reasons mentioned in the preceding section
marriage within the sixth degree to either [Grounds] which may have arisen after the
party to the controversy. arbitration agreement or were unknown at the
● No person shall serve as an arbitrator in time of arbitration.
any proceeding if he has or has had
financial, fiduciary or other interest in the The challenge shall be made before the arbitrator
controversy or cause to be decided or in within 15 days after becoming aware of the
the result of the proceeding, or has any constitution of the arbitral tribunal or after
personal bias, which might prejudice the becoming aware of any circumstance that can be
right of any party to a fair and impartial a ground to challenge. The challenged arbitrator
award. may either accept the challenge and withdraw or
● No party shall select as an arbitrator any reject the same
person to act as his champion or to
advocate his cause. (5.10 [a] IRR)
If they do not yield to the challenge, the
challenging party may renew the challenge
How are arbitrators appointed? before the arbitral tribunal within 30 days after
having received notice of the decision rejecting
● Parties free to agree procedure for the challenge.
appointment except when the same gives
undue advantage to one party such as If the Challenge is once again unsuccessful or
when that agreement allows one party to there is inaction of the arbitral tribunal, the same
choose more arbitrators. challenge can be brought before the appointing
● 1 by each party authority.
NT ADR REVIEWERPage 13
fter which the Court of First Instance of the 3. Amendment of claims or defenses
province or city in which the challenged 4. Hearing and written proceedings
arbitrator, or, any of them, if there be more than a. Pre Hearing Conference- within 30
one, resides. While the challenging incident is days form the appointment of an
discussed before the court, the hearing or arbitrator or the constitution of an
arbitration shall be suspended, and it shall be arbitral tribunal during which they
continued immediately after the court has shall discuss the venue of arbitration;
delivered an order on the challenging incident. manner of recording; period of
(Sec 11) (5.12 IRR) communication of the statement of
claims, and answer, and answer to
When will the mandate of an arbitrator counterclaims, and the form and
terminate? contents thereof; manner of offering
evidence; etc.
[i] Successful Challenge 4. Possibility of compromise not
among those that the parties and
arbitral tribunal are required to
[ii] Failure or impossibility to act. When an
discuss.
arbitrator becomes de jure or de facto unable to
b. Threshold issues- such issues shall
perform his/her functions or for other reasons fail
be discussed if the parties so request,
to act without undue delay, his/her mandate
unless the issues are intertwined with
terminates if he/ she withdraws from office or
factual issues that they cannot be
both parties agree to its termination
resolved ahead of the hearing on the
merits.
In order to facilitate the voluntary withdrawal of c. Hearing dates and postponements-
an arbitrator, the withdrawal will not carry with it arbitral tribunal, in consultation with
the implication that the arbitrator involved the parties, shall fix the date and time
accepted the existence or veracity of the ground of the hearings. Hearings can only be
for his termination. postponed if the arbitrators conform.
d. Default of the party-
➢ Substitute arbitrator shall thereafter be Default of Claimant- Termination of
appointed in accordance with the rule on proceedings
appointment Default of Respondent- Proceed without
failure being considered as an admission
What is the default procedure in Domestic of the claimant’s allegations.
Arbitration? e. Decision on interlocutory matters-
shall be made by the sole arbitrator or
1. Demand to arbitrate; Send copy of majority of the arbitrators.
document containing the arbitration f. Consolidation on concurrent
agreement to the other party; They could hearings- parties may agree to
also forward their arbitrator nominee consolidate the arbitration proceedings
➢ The designated arbitrator, appointing with the other arbitration proceedings
authority or arbitral institution shall be or hold concurrent hearings
furnished with a copy. g. Closure of hearing- After the hearing
2. The other party shall send their Reply on is closed, no further motion,
their agreement to arbitrate, as well as manifestation or submission may be
their nominee arbitrator. allowed except for post-hearing briefs
3. The two parties must agree to the 3rd and reply briefs, unless the arbitral
arbitrator or agree to the sole arbitrator. tribunal, motu proprio or upon the
The arbitral proceedings shall commence request of a party, allows the
upon the completion of appointments of re-opening of the hearing.
the arbitral tribunal 5. Rules on taking evidence
a. Testimonial evidence
b. Documentary evidence
ARBITRAL PROCEEDINGS
c. Subpoena
d. Expert witnesses- In the case of
1. Statement of claims domestic arbitration, it is provided
2. Statement of defenses that, upon the agreement of the
NT ADR REVIEWERPage 14
parties, the finding of the expert
engaged by the arbitral tribunal shall (i) to prevent irreparable loss or injury:
be binding upon them and the arbitral
tribunal (ii) to provide security for the performance of any
e. Court assistance in taking obligation;
evidence
6. Decision- The arbitral tribunal shall
(iii) to produce or preserve any evidence; or
render its written award within 30 days
after the closing of hearings, the
submission of the parties’ respective (iv) to compel any other appropriate act or
briefs, or the declaration by the arbitral omission. (Sec 28)
tribunal that the proceedings have been
closed. This period may be extended by What are the kinds of Interim Measures?
the parties
7. Conclusion/ Closure- May be closed in 2 1. Preliminary Injunction directed against
ways a party to arbitration
a. By an award or settlement- must 2. Preliminary attachment against
be in writing signed by sole arbitrator property or garnishment of funds in
or majority of arbitrators provided that the custody of a bank or third person
the reason for the omitted signature, 3. Detention, preservation, delivery or
the reasons upon which it is based inspection of property
unless the parties agree otherwise or 4. Assistance in the enforcement of an
is an award in agreed terms, and the interim measure of protection granted
date and place of arbitration are by the arbitral tribunal, which the
stated, and a copy delivered to each latter cannot enforce effectively.
party.
b. Termination- How is the provisional relief or interim
(i) the claimant withdraws his measure requested?
claim unless respondent objects
thereto
Interim or provisional relief is requested by
(ii) the parties agree to terminate
written application transmitted by reasonable
the proceedings
means to the Court or arbitral tribunal as the
(iii) The arbitral tribunal finds that
case may be and the party against whom the
the continuation of the
relief is sought, describing in appropriate detail
proceedings has become
the precise relief, the party against whom the
unnecessary or impossible.
relief is requested, the grounds for the relief, and
(iv) Non-payment of the required
evidence supporting the request.
deposits in full.
(Sec 28)
Which court may grant Interim Measures of
Protection in Domestic Arbitration? What is the consequence if a party refuses
● Before constitution of the tribunal, to comply with the order on the interim
from a Court an interim measure of measure?
protection and for the Court to grant such
measure. The party shall be liable for damages resulting
● After constitution of the arbitral from non-compliance, including all expenses and
tribunal and during arbitral reasonable atty’s fees paid in obtaining judicial
proceedings, a request for an interim enforcement
measure of protection or modification
thereof, may be made with the arbitral Arbitration under a contract or submission
tribunal or to the extent that the arbitral shall be deemed a special proceeding, of
tribunal has no power to act or is unable which the court specified in the contract or
to act effectively, the request may be submission, or if none be specified. Which
made with the Court. court has jurisdiction over such proceeding?
(Sec 28)
CFI for the province or city in which one of the
Grounds for Interim Measure? parties resides or is doing business, or in which
NT ADR REVIEWERPage 15
the arbitration was held, shall have jurisdiction. 7. Additional award
Any application to the court, or a judge thereof,
hereunder shall be made in manner provided for What are the Grounds for modifying or
the making and hearing of motions, except as correcting an award BY THE COURT? (30
otherwise herein expressly provided. (Sec 22) days upon receipt of the award)
How is a domestic arbitral award confirmed? (a) Where there was an evident miscalculation of
figures, or an evident mistake in the
● Filing a motion for confirmation and description of any person, thing or
securing an entry of judgment from the property referred to in the award; or
court.
● When: One month after the award is (b) Where the arbitrators have awarded upon a
made matter not submitted to them, not
● Who: Any party to the controversy which affecting the merits of the decision upon
was arbitrated may apply to the court the matter submitted; or
having jurisdiction.
● Thereupon the court must grant such (c) Where the award is imperfect in a matter of
order unless the award is vacated, form not affecting the merits of the
modified or corrected, as prescribed controversy, and if it had been a
herein. commissioner's report, the defect could
● Notice of such motion must be served have been amended or disregarded by the
upon the adverse party or his attorney as court.
prescribed by law for the service of such
notice upon an attorney in action in the
● [d] The order may modify and correct the
same court. (Sec 23)
award so as to effect the intent thereof
and promote justice between the parties.
May the arbitral tribunal amend or modify
the arbitral award?
What are the Grounds for Setting aside or
Vacating an Award THROUGH COURTS?
Generally, it cannot “No motion for (Petition to Vacate)
reconsideration, correction and interpretation of
award or additional award shall be filed with the
(a) The award was procured by corruption, fraud,
arbitral tribunal”
or other undue means; or
This is premised upon the principle that when the
(b) That there was evident partiality or corruption
arbitral tribunal renders its final award, it loses
in the arbitrators or any of them; or
jurisdiction over the dispute and the parties to
the arbitration.
(c) That the arbitrators were guilty of misconduct
in refusing to postpone the hearing upon
Exceptions?
sufficient cause shown, or in refusing to
hear evidence pertinent and material to
Amendment or modification of the arbitral award the controversy; that one or more of the
by the arbitral tribunal is allowed in the following arbitrators was disqualified to act as such
instances. under section nine hereof, and wilfully
refrained from disclosing such
1. Under the arbitration agreement disqualifications or of any other
2. Failure to resolve an issue misbehavior by which the rights of any
3. Quantification of costs party have been materially prejudiced; or
4. Correction of typographical and similar
errors initiated by a party within 30 days (d) That the arbitrators exceeded their powers, or
from receipt thereof so imperfectly executed them, that a
5. Correction of typographical error initiated mutual, final and definite award upon the
by the arbitral tribunal subject matter submitted to them was not
6. Interpretation of the award made.
NT ADR REVIEWERPage 16
*Grounds are limited to the above enumerated CONSTRUCTION DISPUTES
and exclusive
What law governs Arbitration Of
(Sec 24) Construction Disputes? Who has exclusive
Jurisdiction over such disputes?
What is the effect if the award is vacated?
Executive Order No. 1008, otherwise known as
the Constitution Industry Arbitration Law. (Sec
The court, in its discretion, may direct a new
34) Construction disputes which fall within the
hearing either before the same arbitrators or
original and exclusive jurisdiction of the
before a new arbitrator or arbitrators to be
Construction Industry Arbitration Commission
chosen in the manner provided in the submission
(the "Commission") shall include those between
or contract for the selection of the original
or among parties to, or who are otherwise bound
arbitrator or arbitrators, and any provision
by, an arbitration agreement, directly or by
limiting the time in which the arbitrators may
reference whether such parties are project
make a decision shall be deemed applicable to
owner, contractor, subcontractor, quantity
the new arbitration and to commence from the
surveyor, bondsman or issuer of an insurance
date of the court's order. (Sec 24)
policy in a construction project. (Sec 35)
Does the pendency of arbitral proceedings What are the requisites before Appointment
foreclose resort ot the courts for provisional of a Foreign Arbitrator by the CIAC can be
reliefs? made?
No. The parties are still allowed to avail of interim (a) the dispute is a construction dispute in which
measures or provisional remedies. one party is an international party
May the award be appealed? (b) the person to be appointed agreed to abide
by the arbitration rules and policies of CIAC;
An appeal may be taken from an order made in a
proceeding under this Act, or from a judgment (c) he/she is either co- arbitrator upon the
entered upon an award through certiorari nomination of the international party; or he/she
proceedings, but such appeals shall be limited to is the common choice of the two CIAC-accredited
questions of law. The proceedings upon such an arbitrators first appointed one of whom was
appeal, including the judgment thereon shall be nominated by the international party; and
governed by the Rules of Court in so far as they
are applicable. (Sec 29)
(d) the foreign arbitrator shall be of different
nationality from the international party.
● ORDINARY APPEAL RULE 41
(Sec 37)
May court intervention be sought during
arbitral proceedings?
A construction dispute is filed before the
RTC, the latter, prior to the pre-trial
Resort to court intervention from a domestic conference, dismissed the case upon
arbitral award may be had through Sec 24 of R.A. knowing that the parties had entered into
876 to vacate the arbitral award, a petition for an arbitration to be conducted by the CIAC.
review under rule 43 and a petition for Certiorari Was the dismissal proper?
under Rule 65. (ABS- CBN v. WINS)
Yes, however, the parties, assisted by their
respective counsel, may submit to the regional
trial court a written agreement exclusive for the
Court, rather than the CIAC, to resolve the
dispute. (Sec 39)
NT ADR REVIEWERPage 17
E.O. 1008 contracts involving construction in the
Philippines?
What is a construction dispute?
Construction Industry Arbitration Commission
Those between or among parties to, or who are (CIAC) which is an agency under the
otherwise bound by an arbitration agreement, Construction Industry Authority of the Philippines
directly or by reference, whether such parties are and is administratively attached to the DTI. It
project owner, contractor, subcontractor, consists of a chairman and 2 members.
fabricator, project manager, design professional,
consultant, quantity surveyor, bonds-man or What are the functions of the CIAC?
issuer of an insurance policy in a construction
1. To formulate and adopt an arbitration
project and even if the arbitration is commercial
program for the construction industry
in character (Sec 2.2 CIAC Revised Rules)
2. To enunciate policies and prescribe rules
What does Construction refer to? and procedures for construction
arbitration
All on-site works on buildings or altering 3. To supervise the arbitration program and
structures from land clearance through exercise such authority related thereto as
completion including excavation, erection and regards the appointment, replacement or
assembly and installation of components and challenging of arbitrators
equipment. (Fort Bonifacio Development Corp v. 4. To direct its officers and employees to
Sorongon) perform such functions as may be
assigned to them fro time to time. (Sec 6
What should the RTC do when presented E.O. 1008)
with a construction dispute for resolution
upon being aware that the parties had What is the extent of CIAC’s Jurisdiction?
entered into an arbitration agreement?
The CIAC shall have original and exclusive
Motu proprio or upon motion made not later than jurisdiction over disputes arising from, or
the pre-trial, the court should not only dismiss connected with contracts entered into by parties
the case, but also to refer the parties to involve in construction in the Philippines, whether
arbitration by the CIAC, unless all the parties to the dispute arises before or after the completion
the arbitration, assisted by their respective of the contract, or after the abandonment or
counsels, submit to the court a written breach thereof. These disputes may involve
agreement making the court the body that will government or private contracts. (Sec 4 E.O.
resolve the dispute. 1008)
How can a party request for the dismissal of Give Examples of matters that are under the
the action and the referral to the CIAC for jurisdiction of the CIAC?
arbitration?
1.) Violation of specification of materials and
A party may do so by filing a verified motion that worksmanship,
shall be made through a verified motion that 2.) violation of the terms of agreement
shall 3.) interpretation and/or application of
contractual provisions
[i] contain a statement showing that the dispute 4.) Amounts of damages and penalties
is a construction dispute 5.) Commencement time and delays
6.) Maintenance and defects
[ii] be accompanied by proof of the existence of 7.) Payment default of employer or contractor
the arbitration agreement unless it is already part 8.) Change in construction costs
of the records of the case
Can the parties limit the jurisdiction of the
[iii] Contain a notice of hearing CIAC through agreement?
(Rule 17.2 Special ADR Rules) NO The CIAC’s jurisdiction cannot be limited by
the parties stipulation. The jurisdiction of the
Which quasi-judicial agency has the courts and quasi-judicial bodies is determined by
jurisdiction to resolve disputes from the constitution and law. The parties can neither
expand nor diminish a tribunal’s jurisdiction by
NT ADR REVIEWERPage 18
stipulation or agreement. (B.F. Homes et.al. v. are generally accorded great respect, if not
Manila Electric Company) finality by the courts.
NT ADR REVIEWERPage 20
7. When the finding of facts of the CA are JUDICIAL REVIEW OF ARBITRAL AWARDS
contrarY to those of the CIAC
8. When the party is deprived of Who confirms a domestic award?
administrative due process
The confirmation of a domestic award shall be
made by the regional trial court in accordance
with the Rules of Procedure to be promulgated by
the Supreme Court.
(Sec 40)
(Sec 42)
NT ADR REVIEWERPage 21
arbitral award and not a judgment of a counterbond executed in favor of the prevailing
foreign court? party equal to the amount of the award in
accordance with the rules to be promulgated by
No. (Sec 44) the Supreme Court. (Sec 46)
Grounds to Reject a foreign Arbitral Award? Where and how shall the proceedings for
recognition and enforcement of an
(a) The parties to the agreement referred to in arbitration agreement or for vacation,
article II were, under the law applicable to them, setting aside, correction or modification of
under some incapacity, or the said agreement is an arbitral award, and any application with
not valid under the law to which the parties have a court for arbitration assistance and
subjected it or, failing any indication thereon, supervision as special proceedings and shall
under the law of the country where the award be filled?
was made; or
With the RTC:
(b) The party against whom the award is invoked
was not given proper notice of the appointment (ii) where arbitration proceedings
of the arbitrator or of the arbitration proceedings are conducted;
or was otherwise unable to present his case; or (iii) where the asset to be attached
or levied upon, or the act to be
(c) The award deals with a difference not enjoined is located;
contemplated by or not falling within the terms of (iv) where any of the parties to the
the submission to arbitration, or it contains dispute resides or has his place
decisions on matters beyond the scope of the of business; or (iv) in the
submission to arbitration, provided that, if the National Judicial Capital Region,
decisions on matters submitted to arbitration can at the option of the applicant.
be separated from those not so submitted, that
part of the award which contains decisions on (Sec 47)
matters submitted to arbitration may be
recognized and enforced; or ● The Court shall send notice to the parties
at their address of record in the
(d) The composition of the arbitral authority or arbitration, or if any party cannot be
the arbitral procedure was not in accordance with served notice at such address, at such
the agreement of the parties, or, failing such party's last known address.
agreement, was not in accordance with the law of ● The notice shall be sent at least fifteen
the country where the arbitration took place; or (15) days before the date set for the initial
hearing of the application.
(e) The award has not yet become binding on the
parties, or has been set aside or suspended by a
competent authority of the country in which, or
under the law of which, that award was made.
NT ADR REVIEWERPage 22
KATARUNGANG PAMBARANGAY without prejudice to applicable provisions of this
code.
What is its purpose?
What are the ways for termination of
To prevent litigation and to declog courts from appointment?
cases
a.) Resignation
What is the Composition of the Lupon b.) Transfer of Residence or place of work
Tagapamayapa? c.) Withdrawal of appointment of Punong
barangay w/ concurrence of majority of all
The Punong Barangay; 10 to 20 members the members of the lupon
What are the qualifications before a person How are vacancies filled?
can be a part of the lupon?
The Punong Barangay shall immediately appoint
a.) Must be a person working or residing in others who are qualified. The same shall serve
the barangay only the unexpired portion of the filled term.
b.) Not expressly disqualified by law
c.) Possesses integrity, impartiality, How long is the term of office of the lupon?
independence of mind or sense of fairness
and reputation for probity may be 3 years
appointed as member of lupon.
What are the functions of the Lupon?
What is the procedure in creating the
Lupon? a.) Exercise administrative supervision over
conciliation panels provided herein
a.) NOTICE TO CONSTITUTE LUPON b.) Meet regularly once a month to provide a
- Include names of proposed members forum for exchange of ideas among its
- Within 15 days from start of office of members and the public on matters
the Punong Barangay relevant to the ammicble settlement of
- Made by Punong Barangay disputes, and to enable various
- Posted in 3 conspicuous places conciliation panel members to share with
continuously in not less than 3 weeks one another their observation and
b.) OPPOSITION AND APPOINTMENT experiences in effecting speedy dissolution
- Within 10 days after posting of disputes
- Punong Barangay shall appoint c.) Exercise such other powers and perform
- Appointment shall be such other duties and functions as may be
➢ in writing prescribed by law.
➢ Signed by the Punong Barangay
➢ Attested to by the Barangay Who shall serve as the secretary of the
Secretary Lupon? What are its roles?
c.) POSTING OF APPOINTED MEMBERS
- 3 conspicuous places The Barangay Secretary shall serve as the
- For the entire duration of his term or secretary of the lupon. The following are its
office duties:
d.) OATH- each lupon shall take an oath of
office before the punong barangay
a.) Record results of mediation proceedings
b.) Submit report settlement or arbitration
What is the rule if majority of the award to municipal courts of such records
inhabitants are members of indigenous 5 days from date of award or the lapse of
cultural communities? 10 days period to repudiate settlement.
Local systems of settling disputes through their How many members are there in pangkat ng
councils of datus and elders shall be recognized tagapagsundo? Chosen by?
NT ADR REVIEWERPage 23
3 members chosen by the parties to the dispute d.) Offenses where there is no private
from the list of members to the lupon. Otherwise, offended party
lots are drawn in case of dispute by lupon e.) When the dispute involve real properties
chairman. Among the 3 thye would elect among located in different cities or municipalities
themselves the chairman and secretary. unless the parties agree to submit their
differences to amicable settlement by an
Is the record of the lupon confidential? appropriate lupon.
f.) Disputes involving parties who actually
The lupon secretary shall issue certified true reside in the barangays of different cities
copies of any public record in his custody that is or municipalities EXCEPT where such
not by law otherwise declared confidential. barangay units adjoin each other and
parties thereto agree to submit their
difference in amicable settlement
Who chooses replacements in case of
g.) Other cases which the president may
vacancies of the pangkat?
determine in the interest of justice or
upon recommendation of the Secretary of
It chosen by the parties to the dispute from Justice.
among other lupon members. If they fail to
agree, lots shall be drawn.
Courts in which non-criminal cases not falling
within authority of the luponor filed may at any
Are Lupon Members during their term time before trial motu proprio refer the case to
considered as Persons in Authority? the lupon concerned for amicable settlement
Are such persons entitled to compensation? Any individual upon appropriate payment of filing
fee, any individual who has a cause of action
They serve without compensation except for against another individual involving any matter
incentives. within the authority of the lupon may complain
orally or in writing to the lupon chariman of the
Can the private or public employer of lupon barangay until the following working day.
member deduct compensation for the time
the lupon member is performing his duties? What is the procedure for amicable
settlement?
While in the performance of their duties, the
lupon or pangkat members, whether in public or 1.) Submission of Complaint
private employment shall be deemed on official - Orally or in writing
time and shall not suffer from any diminution in 2.) Mediation by lupon Chairman
compensation or allowance from said - If he fails in his mediation effort within
employment by reason thereof. 15 days from the 1st meeting of the
parties before him he shall forthwith
Provincial city legal officer may give legal advice set a date for the constitution of the
on matters involving questions of law. pangkat in accordance with the
provision of such chapter.
What are the exceptions or those that - Summon respondent
cannot be a subject of amicable settlement? - Notice to complainant and their
witnesses
3.) Hearing by the pangkat
a.) When one party is the government or any
- Pangkat shall convene not later than 3
subdivision or instrumentality thereof
days from its constitution, on the day
b.) Where one party is a public officer or
and hour set by the lupon chairman-
employee and dispute relates to the
hear, simplify issues, explore
performance of his official functions
possibilities of amicable settlement.
c.) Offenses punishable by imprisonment
exceeding 1 year or a fine exceeding 5000
pesos
NT ADR REVIEWERPage 24
➢ May issue summons of personal - Attested to by the lupon chairman or
appearance of parties and the pangkat chairman as the case may
witnesses before it be
NT ADR REVIEWERPage 25
5 days from time they agree to the arbitral award ➢ After 6 months from date of
settlement- enforced by action in
When must the arbitration award be made? appropriate city or municipal court
in appropriate city or municipal
After the lapse of the period to repudiate and court
within 10 days thereafter. ➢ Petition for the enforcement of
Compromise Award
Are the arbitration proceedings open to the
public? How to Repudiate?
All proceedings shall be in public and informal. Any party to a dispute may within 10 days from
Exceptions: the date of settlement repudiate the same by
filing with lupon chairman – a statement to that
effect sworn to before him.
➢ The lupon chairman or pangkat
chairman may motu proprio orupon
request exclude the public from the What are the grounds to Repudiate?
procedure
➢ Reasons: Interest, privacy, Consent vitiated by Fraud, Violence or
decency or public morals intimidation
Yes, Parties must appear in person without There shall be an issuance of the Certification of
assistance of counsel or representative EXCEPT filing of the complaint
for minors and incompetents who may be
assisted by their next of kin who are not lawyers Who has the power to administer oaths?
because the purpose is to prevent litigation.
The punong barangay or chairman of the lupong
What is the effect of amicable settlement or tagapamayapa or members of the pangkat.
arbitration award?
UNLESS
EXCEPTION
NT ADR REVIEWERPage 26
CASES: judges the discretion to dismiss and action for
failure of plaintiff to appear in mediation
1. BF CORPORATION V. CA proceedings.
The formal requisites of an agreement to The Trial court was erroneously dismissed. The
arbitrate are the following: (a) It must be in notice of mediation sent to respondent
Writing (b) It must be subscribed by the parties Samsung’s original counsel was ineffectual as the
or their representatives. same was sent at the time when such counsel
had already validly withdrawn its representation.
Petitioners contention that there was no Thus the absence of respondent Samsung during
arbitration clause because the contract the scheduled mediation conference was
incorporating said provision is part of a excusable and justified.
hodge-podge document is untenable. A contract,
such as an arbitration agreement, need not be 4. LM POWER ENGINEERING
contained in a single writing. It may be collected CORPORATON V. CAPITOL
from several different writing, which do not INDUSTRIAL CONSTRUCTION GROUP
conflict with each other and which when
connected show the parties, subject matter, There is no more need to file a request with the
terms and conditions. CIAC in order to vest it with jurisdiction to decide
a
2. ABS-CBN V. WORLD INTERACTIVE
NETWORK SYSTEMS construction dispute. The arbitral clause in the
agreement is a commitment on the part of the
R.A. 876 [Arbitration Law], itself mandates that it parties to submit to arbitration the disputes
is the CFI, now the RTC which has jurisdiction covered therein. Because that clause is binding,
over questions relating to arbitration such as a they are expected to abide by it in good faith.
petition to vacate arbitral award. The RTC has And because it covers the dispute between the
jurisdiction when the ground to vacate are those parties in the present case, either of them may
enumerated under Sec 24 of R.A. 876. A petition compel the other to arbitrate.
to vacate filed in the RTC which is not based on
the grounds enumerated in Sec 24 of said law Since petitioner has already filed a Complaint
should be dismissed. with the RTC without prior recourse to
arbitration, the proper procedure to enable the
In cases not falling under any of the CIAC to decide on the disputes to request the
aforementioned grounds to vacate an award, the stay or suspension of such action as provided
Court has already made several pronouncements under R.A. 876.
that a petition for Review under Rule 43 or a
petition for Certiorari under Rule 65 may be 5. RCBC V. MAGWIN MARKETING
availed of in the CA. CORPORATION
The remedy petitioner availed of entitled There is nothing in the Rules that imposes the
Alternative petition for review under Rule 43 or sanction of dismissal for failing to submit a
Petition for certiorari under Rule 65 was wrong compromise agreement. Dismissal on the basis
because the remedies of appeal and certiorari are thereof amounts no less to gross procedural
mutually exclusive and not alternative and infirmity assailable by certiorari. For such
successive. submission could at most be directory and could
not result in throwing out the cae for failure to
3. REAL BANK INC. V. SAMSUNG effect compromise. While a compromise is
MABUHAY CORPORATION enoucraged, failure to consummate one does not
warrant any procedural sanction, much less an
Mediation is part of pre-trial and failure of the authority to jettison a civil complaint.
plaintiff to appear thereat merits sanction on the
part of the absent party. The Second revised 6. RIZALINA POSITOS V. JACOB CHUA
Guidelines for the Implementation of Mediation
Proceedings and Sec 5 rule 18 of ROC grant
NT ADR REVIEWERPage 27
The failure of respondent to appear personally arbitral tribunals April 13, 1994 Order referring
during the proceedings is equivalent to the case back to the RTC. In so doing, petitioner
non-compliance with R.A. 7160 thus rendering conceded and estopped itself from further
the complaint dismissible Respondents complaint questioning the jurisdiction of the CIAC.
was dismissed for failure to comply with the
conciliation process. Non-compliance affected the 9. AGAN V. PIATCO
sufficiency of his cause of action and rendered The court is aware that arbitration proceedings
the complaint susceptible, as in fact it resulted to pursuant to Sec 10. 02 of the ARCA have been
dismissal on the ground of prematurity. filed at the instance of the Respondent PIATCO.
We hold that the arbitration step taken by
7. UNIWIDE SALES REALTY AND PIATCO will not oust this court of its jurisdiction
RESOURCES CORPORATION over the case at bar.
An arbitration body, the CIAC, can only resolve Petitioners in the present case who have
issues before it by the parties through the Term presented legitimate interest in the resolution of
of Reference which functions similarly as a the controversy are not parties to the PIATCO
pre-trial brief. Thus if Uniwide’s claims for contracts. Accordingly they cannot be bound by
unliquidated damages was not raised as an issue the Arbitration clause provided for in the ARCA
in the TOR or in any modified or amended version and hence cannot be compelled to submit to
of it, the CIAC cannot make a ruling on it. arbitration proceedings.
NT ADR REVIEWERPage 28
shall be final, is valid, without prejudice to
Articles 2038, 2039 and 2040.
14.CARGILL PHILIPPINES V. SAN
FERNANDO REGALA TRADING INC.
The arbitration clause was mutually and
voluntarily agreed upon by the parties. It has not Respondent argues that the separability doctrine
been shown to be contrary to any law, or against is not applicable in petitioner's case, since in
morals, good customs, public order, or public the Gonzales case, Climax-Arimco sought to
policy. There has been no showing that the enforce the arbitration clause of its contract with
parties have not dealt with each other on equal Gonzales and the former's move was premised
footing. We find no reason why the arbitration on the existence of a valid contract; while
clause should not be respected and complied with Gonzales, who resisted the move of
by both parties. Climax-Arimco for arbitration, did not deny the
existence of the contract but merely assailed the
12.KOPPEL INC. V. MAKATI ROTARY validity thereof on the ground of fraud and
CLUB oppression. Respondent claims that in the case
before Us, petitioner who is the party insistent on
Even if the validity of the 2005 lease contract for arbitration also claimed in their Motion to
which the arbitration clause originated from is Dismiss/Suspend Proceedings that the contract
under dispute, the arbitration clause can still be sought By respondent to be rescinded did not
invoked under the Doctrine of Separability exist or was not consummated; thus, there is no
[Arbitration agreement is independent of the room for the application of the separability
main contact even if it contained in Arbitration doctrine, since there is no container or main
clause.] contract or an arbitration clause to speak of. We
are not persuaded.
Filing of a request pursuant to Section 24 of R.A.
Applying the Gonzales ruling, an arbitration
9285 is not the sole means by which an arbitral
agreement which forms part of the main contract
clause may be validly invoked. When the
shall not be regarded as invalid or non-existent
petitioner invoked the right to arbitrate in their
just because the main contract is invalid or did
answer, they effectively invoked the right to
not come into existence, since the arbitration
arbitrate.
agreement shall be treated as a separate
agreement independent of the main contract.
Failure to settle Judicial Dispute Resolution
proceedings gives rise to more cause to submit 15.ELPIDIO S. UY V. PUBLIC ESTATES
the same case to arbitration. AUTHORITY
13.GONZALES V. CLIMAX MINING LTD. Appeals from judgment of the CIAC shall be
taken to the CA by filing a petition for review
Arbitration before the Panel of Arbitrators is
within fifteen (15) days from the receipt of the
proper only when there is a disagreement
notice of award, judgment, final order or
between the parties as to some provisions of
resolution, or from the date of its last publication
the contract between them, which needs the
if publication is required by law for its effectivity,
interpretation and the application of that
or of the denial of petitioners motion for new trial
particular knowledge and expertise possessed
or reconsideration duly filed in accordance with
by members of that Panel. It is not proper
the governing law of the court or agency a quo.
when one of the parties repudiates the
existence or validity of such contract or
When Uy filed his petition for review with the CA,
agreement on the ground of fraud or
the period to appeal had not yet lapsed; it was
oppression as in this case. The validity of the
interrupted by the pendency of his motion for
contract cannot be subject of arbitration
computation. There is no basis, therefore, to
proceedings. Allegations of fraud and duress
conclude that the petition was belatedly filed.
in the execution of a contract are matters
within the jurisdiction of the ordinary courts
16.SHINRYO COM INC. V. RRN INC
of law. These questions are legal in nature
and require the application and interpretation
It is quite clear that what petitioner seeks is for
of laws and jurisprudence which is necessarily
this Court to recalibrate the evidence it has
a judicial function.
presented before the CIAC. It insists that its
NT ADR REVIEWERPage 29
evidence sufficiently proves that it is entitled to
payment for respondent's use of its manlift The petitioner counters, however, that it is
equipment, and even absent proof of the entitled to seek for the recognition and
supposed agreement on the charges petitioner enforcement of the subject foreign arbitral award
may impose on respondent for the use of said in accordance with Republic Act No. 9285
equipment, respondent should be made to pay (Alternative Dispute Resolution Act of 2004), the
based on the principle of unjust Convention on the Recognition and Enforcement
enrichment. Petitioner also questions the of Foreign Arbitral Awards drafted during the
amounts awarded by the CIAC for inventoried United Nations Conference on International
materials, and costs incurred by petitioner for Commercial Arbitration in 1958 (New York
completing the work left unfinished by Convention), and the UNCITRAL Model Law on
respondent. It is settled that findings of fact of International Commercial Arbitration (Model
quasi-judicial bodies, which have acquired Law), as none of these specifically requires that
expertise because their jurisdiction is the party seeking for the enforcement should
confined to specific matters, are generally have legal capacity to sue.
accorded not only respect, but also finality,
especially when affirmed by the Court of Even assuming, only for the sake of argument,
Appeals. In particular, factual findings of that the court a quo correctly observed that
construction arbitrators are final and the Model Law, not the New York Convention,
conclusive and not reviewable by this Court governs the subject arbitral award, petitioner
on appeal. may still seek recognition and enforcement of the
award in Philippine court, since the Model
Law prescribes substantially identical exclusive
17.HEUNGHWA INDUSTRY CO., LTD, VS. grounds for refusing recognition or enforcement.
DJ BUILDERS CORPORATION Premises considered, petitioner TPI, although not
There are two acts which may vest the CIAC with licensed to do business in the Philippines, may
jurisdiction over a construction dispute. One is seek recognition and enforcement of the foreign
the presence of an arbitration clause in a arbitral award in accordance with the provisions
construction contract, and the other is the of the Alternative Dispute Resolution Act of 2004.
agreement by the parties to submit the dispute
to the CIAC. 19.F.F. CRUZ & CO., INC V. HR
CONSTRUCTION CORP.
The first act is applicable to the case at bar. The
bare fact that the parties incorporated an Under Section 19 of E.O. No. 1008, the arbitral
arbitration clause in their contract is sufficient to award of CIAC "shall be final and inappealable
vest the CIAC with jurisdiction over any except on questions of law which shall be
construction controversy or claim between the appealable to the Supreme Court. Factual
parties. The rule is explicit that the CIAC has findings of construction arbitrators are final and
jurisdiction notwithstanding any reference made conclusive and not reviewable by this Court on
to another arbitral body. It is well-settled that appeal. This rule, however, admits of certain
jurisdiction is conferred by law and cannot be exceptions.
waived by agreement or acts of the parties. Thus,
the contention of petitioner that it never Issues on the proper interpretation of the terms
authorized its lawyer to submit the case for of the Subcontract Agreement involve questions
arbitration must likewise fail. Petitioner argues of law.
that notwithstanding the presence of an
arbitration clause, there must be a subsequent FFCCI primarily seeks from this Court a
consent by the parties to submit the case for determination of whether amount claimed by
arbitration. To stress, the CIAC was already HRCC in its progress billing may be enforced
vested with jurisdiction the moment both parties against it in the absence of a joint measurement
agreed to incorporate an arbitration clause in the of the formers completed works. The
sub-contract agreement. Thus, a subsequent determination of the foregoing question entails
consent by the parties would be superfluous and an interpretation of the terms of the Subcontract
unnecessary. Agreement vis--vis the respective rights of the
parties herein. On this point, it should be
18. TUNA PROCESSING INC. V. PHIL stressed that where an interpretation of the true
KINGFORD agreement between the parties is involved in an
NT ADR REVIEWERPage 30
appeal, the appeal is in effect an inquiry of the law. It cannot be fixed by the will of the parties
law between the parties, its interpretation to the dispute, nor can it be expanded or
necessarily involves a question of law diminished by stipulation or agreement. The text
of Section 4 of E.O. No. 1008 is broad enough to
20. ESTATE OF NELSON R. DULAY V. cover any dispute arising from, or connected
ABOITIZ JEBSEN MARITIME, INC. with, construction contracts, whether these
The Voluntary Arbitrator of the NCMB must take involve mere contractual money claims or
cognizance of the case. execution of the works. This jurisdiction cannot
be altered by stipulations restricting the nature of
Articles 217(c) and 261 of the Labor Code are construction disputes, appointing another arbitral
very specific in stating that voluntary arbitrators body, or making that bodys decision final and
have jurisdiction over cases arising from the binding.
interpretation or implementation of collective
bargaining agreements. Stated differently, the Also, though one party can refuse to participate
instant case involves a situation where the in the arbitration proceedings,
special statute (R.A. 8042) refers to a subject in this cannot prevent the CIAC from proceeding
general, which the general statute (Labor Code) with the case and issuing an award in favor of
treats in particular.[5] In the present case, the one of the parties.
basic issue raised by Merridy Jane in her
complaint filed with the NLRC is: which provision 23.RCBC v. BDO
of the subject CBA applies insofar as death
benefits due to the heirs of Nelson are There was evident partiality in the case at bar
concerned. The Court agrees with the CA in which constitutes as a legal ground for vacating
holding that this issue clearly involves the the Second Partial Award. Although the parties
interpretation or implementation of the said CBA. provided in the SPA that the arbitration shall be
Thus, the specific or special provisions of the considered under the ICC Rules, it was neverthe
Labor Code govern. less arbitration under Philippines Law since the
parties are both residents of the country. R.A.
21.AGBAYANI V. CA 876 provides as a ground to vacate an award
The compulsory process of arbitration is a “evident partiality or corruption in the arbitral
pre-condition for the filing of the complaint in tribunal or any of its members”. Evident partiality
court. Where the complaint (a) did not state that is not defined in our arbitration laws but is
it is one of excepted cases, or (b) it did not allege defined in the Federation Arbitration Act of the
prior availment of said conciliation process, or (c) US—“The existence of signs and indications that
did not have a certification that no conciliation must lead to an identification or inference of
had been reached by the parties, the case should partiality.”
be dismissed. Here, petitioner Agbayani failed to Chairman Baker’s act of furnishing the parties
show that the instant case is not one of the with copies of Mathew Secomb’s article
exceptions enumerated above. Neither has she considering the attendant circumstances, is
shown that the oral defamation caused on her indicative of partiality, such that a reasonable
was so grave as to merit a penalty of more than man would conclude that he was favoring RCBC.
one year. The chairman practically armed RCBC with
supporting legal arguments discussed by
22.METROPOLITAN CEBU WATER Secomb.
DISTRICT V. MACTAN ROCK
INDUSTRIES INC.
NT ADR REVIEWERPage 31
NT ADR REVIEWERPage 32