ALTERNATIVE DISPUTE RESOLUTION

By. Atty. Gabriel Robeniol

Chapter 1: Introduction

Historical Rule:

Judicial and Legislative trends:

Utilization of alternatie means and methods implemented in or outside the court trial system
Civil Code of the Philippines:

30 August 1950
Contains provisions of/or on compromise arbitration.
Encourages litigants to agree upon fair compromise and authorize arbitration
19 June 1953

Enactment of arbitration law

Republic Act. 876

20 May 1965

Convention on the recognition and enforcement of foreign arbitration / arbitral awards

Philippine law has acknowledged the international arbitration as system of setting commercial dispute.
UNCITRAL

Model law which the Philippines committed its adherence.

Judiciary Action

Response of Judiciary to the Problems of Delay.

Requirements of conducting pre-trial conference

Utilization on different modes of discovery
Proscription against forum shopping
The supreme court encourages the use of arbitration through Philippine Mediation Commission or through
Judicial Dispute Resolution (JDR)
Legislative Action:

Special domestic legislation passed the prescription of arbitration, mediation and conciliation.
G:
Labor Code of the Philippines
National Labor Relations Commissions
Concerning:

Unfair Labor Practice

Termination of Employment
Conditions of Employment
Damages arising from E – E
Level Arbitration
Executive Branch Contribution:
CIAC – Construction Industry Arbitration Commission – Enacted during 4 Feb 1985 concerning constriction
dispute
23 August 1998 – rules of procedure governing construction arbitration
19 November 2005 – CIAC revised rules of procedure governing construction arbitration
22 March 2010 – rules on ADR for dispute between national government agencies: amicable settlement dispute

THE ADR Act of 2004

Dispute resolution law

An act to institutionalize use of an alternative dispute resolution system in the Philippines and to establish the
office for alternative dispute resolution and for other purpose.
28 April 2004

Philippines as the Venue of ICA

· RTC must refer to arbitration in proper case

· Foreign Arbitral awards must be confirmed by RTC

· The RTC has jurisdiction to review foreign arbitral awards

· Grounds for judicial review different in Domestic and Foreign arbitral awards.

· RTC Decisions of assailed foreign arbitral awards appealable: CA, certiorari

The Lawyer’s Role

Contribute to the promotion of ADR

Assist courts in encouraging the parties to avail of alternative means of dispute resolution
Explain the benefits of the ADR system.
Chapter 2: Fundamentals of Alternative Dispute Resolution

Alternative Dispute Resolution

 Expeditious and speedy manner

 Methods of resolving dispute outside the court trial system
 Includes similar process in quasi – judicial agencies
 Any process the used to resolve a dispute or controversy
 Neutral third party

State Policy in ADR

o ADR act of 2004 declared the state policy
o Promote party autonomy resolution of dispute
o Freedom of the party to choose or make their own arrangement to resolve dispute
o Provides solutions that is less time consuming, less confrontational procedure of goodwill and lasting
friendship
o Wave of the future in international relationship

Principles of ADR
 o Promotion of party autonomy and self – determination in dispute resolution
o Recognition of ADR as an efficient tool and an alternative procedure for the resolution of cases
o Enlisting a private sector participation

Objectives and Benefits of ADR

o Speedy and impartial justice

o Declogging of court dockets.

Features of ADR

 ADR means used to resolve a dispute or controversy

 Exceptions: intention is to cause delay or suspend the proceeding
 ADR utilize means and methods allowed by law
 ADR is contractual in nature
 ADR avoids court trial
 ADR usually involves the participation of neutral third party

Sources of ADR

 Domestic Laws and Rules

 Constitution

Civil Code

Arbitration Law

 Acts of the Executive Branch

 Decisions of the Supreme Court
 International Law : UNCITRAL
 General principle of Law and Equity

Forms of ADR

 Arbitration – arrangement of the and abiding by the judgment or selected person in dispute; binding
between the parties
 Mediation – voluntary agreement between the parties with the help of third person to convince them to
come into an agreement; non binding between eh parties.
 Conciliation – conciliation of dispute in an unantagonistic manner
 Neutral – lawyers are brought to present the summary of the case
 Early – Neutral – availed of in pre – trial case
 Mini – trial – merits of the case ar argued in front of a panel
 Any combination of the foregoing
 Any other ADR forms
 Classification of Forms of ADR

As to the number of parties:

 Bi – party – one or two parties
 Multi – Party – two or more
  AS to the number of issues involve:
 Simple – one issues involve
 Complex – two or more issues
 As to the extent of conclusion
 Complete – all issues involve is resolve
 Partial – only two or three issues involve are resolved but not all
 As to the role of evidence in the proceedings
 Evidentiary
 Non – merit based
 As to the pendency of the court case
 Case – related – when there is a case involved
 Independent
 AS to the applicable law
 Domestic – when the place of business and arbitration is in the Philippines
 International – when the place of business involved two states and arbitration is outside the Philippines
 Foreign – when the place of business is outside the Philippines and the arbitration is outside the
Philippines.
 As to the permanency of the ADR provider
 AD – HOC – temporary
 Institutional – permanent

Components of ADR

 Contending parties
 Dispute or controversy
 Form of ADR
 ADR provider or practitioner
 Subject matter of ADR

Adversarial dispute and controversy

Exception:
 Civil Status of persons
 Validity of marriage and any other forms of legal separation
 Jurisdiction of courts
 Future legitime
 Criminal Liability
 In general which the law cannot be compromise

Basic Concepts of ADR

 Concluding Acts or Arguments
 Arbitral Award – final decision of arbitration on awarding issue or controversy
 Mediated Settlement agreement – contract executed by the parties
 Compromise or compromise agreement – avoidance of litigation or to put an end to the one already
existing
 Waiver or quitclaim – a statement renouncing any right or claim
 ADR providers or practitioners
 Preferences of ADR

Office for ADR

  ADR – agency attached to DOJ
 Executive Director appointed by the president upon recommendation of secretary of justice

Chapter 3: Mediation under ADR Act of 2004

Mediation

 Voluntary process in which a mediator is selected by the disputing parties

 Facilitates communication and negotiation
 Assist the parties in reaching voluntary agreement

Court Annexed Mediated

 Mediation conducted under the auspices of the court

Court Referred Mediation

 Ordered by the court to be conducted by the agreement of the parties

Mediator

 Person conducting mediation

Mediation Practitioner

 Parties in mediation

Non – Party participants

 Witness, resource person, or expert

Classification of Mediation

 Non – evidentiary or non – merit based mediated

 Focuses on facilitation or communication and negotiation between the parties in encouraging to
voluntarily settle dispute
 Institutional
 Administered and conducted by or under the rules of mediation institution
 Ad – Hoc
 Other than institutional

To be bound by the internal mediation and the administrative policies of such institution
To have such rules govern the mediation of the dispute and for the mediator

Place of Mediation

 Two disputing parties are free to agree the place\

 In the absence – default is convenient to and appropriate to all the parties
Stages of Mediation

 Opening statement of mediator

 Individual narration by the parties
 Exchange by the parties
 Summary issues
 Generalization and evaluation of options
 Closure

Mediation shall be held in private

Exceptions: Parties consented that there be other persons

Closed and concluded

 Execution of settlement agreement

 Withdrawal of any party from mediation
 Written declaration

Advantages of Mediation

 Confidentiality in Mediation Process

 Prompt, economical amicable dispute resolution
 The decision making authority rest upon the parties

Confidential and Privileged nature of Mediation Communication

 All information of evidence is privileged and confidential in character

Confidential Information

Any information relative to the subject of mediation or arbitration

Expressly intended not to be disclosed

Expressly Confidential

Impliedly confidential

Creates reasonable expectations

Confidential Information Includes:

Communication
Oral or Written statements
Pleadings, motions, manifestations

Legal effects of Confidential and privileged nature

A party may refuse to disclose

Not subject to discovery and inadmissible in adversarial proceedings
People cannot be compelled to disclose information
Parties to the dispute
Mediation
Counsel for the parties
Non – Party
Secretary, stenographer, assistants
Any persons who obtains information
Continues even the mediator fialed to act impartially
Mediator may not be called to testify

Exceptions based on agreement, Nature of Proceedings, Crime or Social Justice

Contained in an agreement evidence by a record authenticated by all parties to agreement

Made public or required by the courts to make it public
A threat or statement of plan to inflict bodily injury
Communication on attempt to commit a crime
Used to approve or disprove neglect, abandonment or exploitation
Used to sought or complaint against misconduct
Non party base agreement

Exceptions based on Public Policy

 Court proceeding involving a crime or felony

 Avoid liability on contracts arising from mediation

Limited use of External Evidence

 Only such portion of the communication necessary for the application of the exception can be admitted
in evidence

Privileged Mediation

 Bound by the confidential privileged

 Exception
 Termination of mediation
 Settlement was reached
 Permitted to be disclosed

Waiver of Confidentiality

 Expressed
 Implied

The Mediator

OADR – list and freedom to select mediators

Withdrawal Requirements
  The party requested
 Lacks qualifications, training and experience
 Mediator’s impartiality is in question
 Violation of ethical standards
 Safety will be jeopardized
 Unable to provide effective services
 Conflict of interest
 Other instances

Duties and Functions of Mediationr

 Prior to Mediation
 Upgrade professional competencies
 Reasonable inquiry
 During the Mediation
 Confidential
 Consent and self determination
 Promotion of respect and control of abuse and process

Mediator’s Cost and Fees

Ad Hoc – free to make their own arrangement as to the mediation of cost and fees

Mediated Settlement Agreement

 Compromise Agreement
 Successful Mediation

Roles of counsel in Mediation

 Collaborative
 Encourage
 Assist
 Confer

Chapter 4: Arbitration in General

Arbitration

Process which one or more arbitrators appointed in accordance with the agreement of the parties
It is the arbiter that decides the dispute and renders an arbitral award to conclude in arbitral proceedings

Kinds of Arbitration

Voluntary
Reference of a dispute to an impartial body
Members are chosen by the parties themselves
Compulsary arbitration
Settlement of labor dispute by the government agency which has the authority to investigate
Domestic
 International
Foreign

Same concept lang naman to nung nasa chapter two na foreign domestic at international dapat alam nyo nay un.

Commercial Arbitration – matters arising from all relationship of commercial in nature

Policy on Arbitration
Speedy and inexpensive methods

Arbitrator

Person appointed to render an award

May use his own discretion in the performance of his function

Arbitration agreement

Agreement by the parties

In respect of legal relationship

Essential elements

Consent of the parties freely given

Cause of consideration
Lawful object

Two modes in submitting dispute

Agreement to submit in arbitration

Submission agreement

Arbitration Agreement

Shall be in writing and subscribed by the parties to be charged

May be included in arbitration clause or compromise

Arbitration Clause

 Must be liberally construed consistent with the policy of encouraging alternative dispute resolution
method

Doctrine of Separability

 Arbitration agreement is independent of the main contact even if it contained in Arbitration clause

Due process in Arbitral proceedings

 Principles of administrative due process equally apply to arbitral proceedings

Judicial Review and Court intervention

  Proper RTC
 Review Court of Appeals Rule 43 ROC
 Certiorari proper court Rule 65 ROC

Interim Measures in Arbitration

 Allows the application of a party to a judicial authority for interim conservatory

 Allows filing of provisional interim measures with regular courts whenever the arbitral tribunal has no
power to act effectively

Chapter 5: International Commercial Arbitration under the ADR Act of 2004 and its IRR

International Commercial Arbitration

 Instances of Occurrence of International Arbitration

 Parties and Places of business is in different state
 Place of arbitration provided in the agreement where parties have their business is outside the
Philippines
 Substantial part of obligation is to be performed outside the Philippines
 Subject matter of agreement relates to more than one parties
 Commercial Arbitration
 Commercial relationship in nature
 Contractual or not
 Foreign Arbitration
 International commercial arbitration is outside the Philippines

Coverage of IRR Provisions of ICA

 Applicable only to international commercial arbitration

 The rules of procedure for international commercial arbitration provided for under the ADR act or its IRR
may also be applied for international commercial arbitration outside the Philippines if they are adopted
as rules of procedure by the parties in the exercise of their privileged of party – autonomy and self –
determination

Default Rules

 provisions of the IRR

 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

Rules of Interpretation

 Interpretation of the ADR act

 due regard to the policy of law favouring arbitration
 Interpretation of the model Law
 need for uniformity of its interpretation
 Interpretation of the IRR
 Same policy
 Party autonomy
 Freedom of the parties
  Reference to an agreement
 Rules applicable to claims and counter claims

Rules of Receipt of Written Communication in ICA

 The subject matter of the dispute may be located in different stage

Rules communication is deemed received

 Delivered to the address personally or at his place of business, habitual residence or mailing address
 If there is none, delivery by registered mail or attempt to deliver to last know place of business

Waiver of the Rights to Object in ICA

Arbitration is different from mediation in that the latter is not merit or evidence based and therefore not
procedurally driven

Limitations

ADR act and its IRR is limited to the application of rules on the waiver in the mediation proceedings to
wavier of confidentiality and privilege only
IRR expands the application of the rules on waiver to include non – compliance with the rules or
requirements

Doctrine of Estoppel

Objectives to non compliance with the rules or any requirements under the arbitration agreement must be
raised without undue delay or within the time prescribed therefore, failing which, the right to object is deemed
waived

Estoppel in pais

Happens when one, by his acts, representation, or admissions, or by his own silicon when he ought to speak out,
intentionally or culpable negligence, induces another to believe certain facts to exist and such belief in a manner
that he will be prejudiced if the former is permitted to deny the existence of such facts

Confidentiality in ICA

General Rule

In the case of mediation, proceedings, records, evidence, and arbitral awards are confidentia
Exceptions:

Consent of the Parties

Limited purpose of disclosing to the court relevant documents in cases where resort to the court is
allowed

Due Process in ICA

IRR mandates that the parties shall be treated equally and shall be given full opportunity
 Reasonable opportunity

Due Process

Complied if parties are given opportunity to be heard and present evidence

Place if ICA

Default place – MANILA

Place chosen by Parties

Commencement of ICA proceedings

Date – requested by the parties

Default date – date of request for that dispute

Language in ICA

Parties shall determine the language

Default – English

Applicable Law in ICA

Governing law generally is substantive law

Substantive Law

Law or legal system applicable to complete resolution of dispute

Conflicts of Law/Private International Law

Part of municipal law or state which directs courts and administrative agencies, when confronted with a legal
problem involving a foreign element, where they should apply a foreign law

Appointing Authority in ICA

 He person or institution named in the arbitration agreement

Functions

 Take necessary measurements

 Decide on the challenge
 Consider the qualifications
The default appointment of an arbitrator shall be made by the National President of the Integrated bar of the
Philippines.

Arbitrators and Arbitral Tribunal in ICA

 Default number of arbitrators is three and is due to their appointment

Default Procedure

 3 arbiter – each party shall appoint one

 Sole arbiter – shall be appointed by the parties
 The decision of the appointing authority on this matter shall be immediately executor and shall not be
subject to a motion for reconsideration or appeal
Factors in Appointing Arbitrators

 Qualifications
 Considerations
 Advisability of appointing an arbitrator of a nationality

Grounds for changeling an Arbitrator in ICA

 Impartiality
 Possession of the qualifications

Procedure for the challenge in ICA

 Default procedure
 Sending of written agreement 15 days after becoming aware of the constitution of arbitral tribunal
 The parties may request the appointing authority within 30 days to challenge tribunals

Procedure incase the Arbitrator fails to act in ICA

 Mandates terminates
 Withdraws
 Parties agrees in the termination

Jurisdiction of Arbitral Tribunal in ICA

 Jurisdiction
 The right to act whether or the power to and authority to hear and determine cause

Jurisdiction over subject matter

 Subject matter of the controversy is conferred by law

Two Instances

 Lack of jurisdiction
 Excess of jurisdiction

Jurisdictional review of Jurisdictional Issue

 Consider challenge as preliminary question

 Defer resolution

Jurisdiction over the pArties

  Pre – causal agreement

Interim Measures in ICA

 Request shall be in writing transmitted by reasonable means

 Relieve may be granted to prevent irreparable loss, security, preserve evidence, compel

Legal Representation in ICA

 A person may be represented by any person of his choice

Determination of Rules of Procedure

 Statement of claims
 Statement of Defence
 Default of the parties
 Amendment of claims or defences
 Hearings (1) court assistance in taking evidence (2) subpoena (3) expert
 Conclusion / closure

Requisites for an Arbitral Award to be Final

 Rendition of the arbitral award

 Hearing on the qualification
 Expiration of the periods

Cost in ICA

 Fees on arbitral tribunal

 Travel
 Cost of expert advice
 Travel and other expenses of witness
 Cost for legal representation
 Fees and expenses of appointing authority

Correction and Interpretation of ICA award

 Quantification of the cause and the determination of the party liable therefore or the division between
the parties
 Correction of typographical and similar errors initiated by a parties
 Interpretation of the awards
 Correction of typographical error initiated by the Arbitral Tribunal
 Additional award

Setting Aside an ICA AWARD

Requirements

 Default in the arbitration agreement

 Violation of due process
  Lack or excess of jurisdiction on the part of the arbitral award
 Violation of the arbitration agreement

Venue:
RTC

Requirements

 Place of arbitration
 Assessed, reviewed or enjoinment is located
 Residence ir place of business
 NCR

Time for filing the petition for Setting Aside

3 mos
90 days

Recognition and Enforcement of Foreign Arbitral Awards

Recognition

 Means by which a Philippine courts give legal acknowledgment to a foreign arbitral award

Confirmation
 Judicial affirmation of a domestic arbitral award

Enforcement
 Execution and implementation