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1.

ANG HIRAP FUCK


2. WHAT ARE THE BENEFITS/ADVANTAGES OF CHOOSING ARBITRATION? WHAT
ARE THE DISADVANTAGES?

ADVANTAGES (NICCF-FCACS)
1. Neutrality
2. International Enforcement
3. Centralized Dispute Resolution.
Other reasons:
4. Commercial Competence/Expertise
5. Finality of Decision
6. Procedural Flexibilty/Party Autonomy
7. Confidentiality
8. Additional Powers of arbitrators
9. Continuity of Role
10. Arbitration involving state

DISADVANTAGES
1. Cost of Arbitration
2. Delay
3. Limits in arbitrator’s powers
4. Multi-party/Bi-polar Arbitrations
5. Non-signatories to arbitration agreement
6. Consolidation
7. Joinder of issues involving 3rd parties
8. Conflicting Awards
9. “Judicialization”
10. Changes in arbitration

3. (A) WHEN IS ARBITRATION INTERNATIONAL? WHEN IS IT DOMESTIC?


- Art. 1 (3) of UNCITRAL Model Law:
“ An Arbitration is INTERNATIONAL if:
(a) The Parties to an agreement have, at the time of the conclusion of that
agreement, their places of business in different states.
(b) One of the following places is SITUATED OUTSIDE THE STATE in which the
parties have their places of business:
1. The place of arbitraton
2. Any place where
i. a substantial part of the OBLIGATIONS of the COMMERCIAL
RELATIONSHIP is to be performed or
ii. the place with which the SUBJECT-MATTER of the DISPUTE is
most closely connected
3. The parties have expressly agreed the the subject-matter of the
ARBITRATION AGREEMENT relates to more than one country.

- It is DOMESTIC if it does not fall under any of the enumerated circumstances which
makes an arbitration International. (?)
(B) WHAT “LAWS” GOVERN EACH UNDER ADR ACT ---????
4. AD HOC v. INSTITUTIONAL + PROS CONS OF EACH

AD HOC Arbitration is:


1. Conducted without the benefit of an appointing authority or a pre-existing arbitration
rules of an institution..
2. It is subject only to the parties’ arbitration agreement and applicable national
arbitration legislation
-Parties will sometimes select pre-existing rules designed fo ad hoc arbitration like
UNCITRAL Arbitration Rules
-Parties usually designate an appointing authority to select arbitrators if they cannot agree
themselves

INSTITUTIONAL Arbitration is:


1. Conducted pursuant to institutional arbitration rules properly incorporated by the
parties’ arbitration agreement
2. Almost always overseen by an appointing authority with responsibility for
constituting the arbitral tribunal, fixing their compensation, and other matters (like a
secretariat)

ADVANTAGES of AD HOC: It’s more Flexible and Confidential, may take more into
consideration the particularities of the current dispute in the determination of the procedure
DISADVANTAGES of AD HOC: Risk of procedural breakdowns, uncertainty of having
technical defects, largely dependent of the cooperation between/among the parties

ADVANTAGES OF INSTITUTIONAL:
-Reduced Risk of procedural breakdowns and technical defects
-Tries and tested
-more sophisticated
-Ensures a more efficient/effective processes due to provisions on competence, separability,
provisional measures, disclosure , impartiality, correction/changes to awards, replacements,
and costs

DISADVANTAGES OF INSTITUTIONAL:
More expensive
May fail to take into consideration the complexity of the case for example in setting
dealines/time limits etc.

5.DEFINITION OF ARBITRATION AGREEMENT UNDER UNCITRAL MODEL LAW and NY


CONVENTION

NY CONVENTION- it is an agreement in writing under which the oarties undertake to submit to


arbitration all or any difference which habe arisen or which may arise between them in respect
of a defined legal relationship, whether contractual or not, concerning a subject matter capable
of settlement by arbitration.
(Might be asked) FORM: “in writing” shall include an arbitral clause in a contract or an arbitration agreement, signed
by the parties or contained in an exchange of letter or telegram
UNCITRAL MODEL LAW- “Arbitration Agreement” is an agreement by the parties to submit to
arbitration all or certain disputes which have arisen or which may arise between them in
respect of a defined legal relationship, whether contractual or not. An arbitration agreement
may be in the form of an arbitration clause in a contract or in a form of separate agreement.

6. UNCITRAL MODEL LAW ARTICLE 7. –IN WRITING- TRUE OR FALSE


DEPENDS ON WHICH OPTION THE STATE CHOOSES (???)

Article 7 (2)- “The arbitration agreement shall be in writing. An agreement is in writing if it is


contained in (1) a document signed by the parties or (2) in an exchange of letters, teletext,
telegram, or other means of telecommunication which provide for a record of the agreement,
or (3) in an exchange of claims and defences in which the existence of an agreement is alleged
by one party and not denied by another. (4) The reference in a contract to a document
containing an arbitration clause constitutes an arbitration agreement provided that the
contract is in writing and the reference is such as to make that clause part of the contract.

HOWEVER, the Revised Model Law (2006) recognized 2 options for the state:
Option1- Adhere to the writing requirement, with the definition of “writing” extended to
include electronic communications of all types
Oprion2- Dispense altogether with the writing requirement (Hence, allowing oral agreements)

7. CAN ANY AND ALL DISPUTES BE RESOLVED BY ARBITRATION? EXPLAIN.


No.(?) While the parties may agree to submit to arbitration all disputes arising from their
defined legal relationship, they may also agree to submit only certain disputes to arbitration.
Moreover, in the Philippines, there are matters that cannot be arbitrated as provided by law
such as:
1. Validity of marriage
2. Jurisdiction of courts
3. Any ground for legal separation
4. Civil Status of persons
5. Criminal liability
6. Future Legitime
7. Labor disputes covered by the labor code
8. And those disputes which by law cannot be compromised.