ADR FINALS REVIEWER

I.
1. When shall the arbitration commence? [Art. 21, 1985 Model Law]
ANS: In the absence of agreement between the parties, the arbitral proceedings commence on
the date on which the request for referral of the dispute to arbitration is received by the
respondent.
If there exists a prior agreement on the other hand, arbitration is deemed commenced as
follows:
(1) In institutional arbitration – it is commenced in accordance with the arbitration rules of
the institution agreed upon by the parties.
(2) In ad hoc arbitration – it is commenced upon delivery of a demand for arbitration by the
claimant to the respondent.

2. Compare international commercial arbitration from domestic arbitration. [Secs. 19, and 32, RA
9285]
ANS: International commercial arbitration is governed by the 1985 Model Law which
provides that an arbitration is international if:
(a) the parties to an arbitration agreement have, at the time of the conclusion of that
agreement, their places of business in different States; or
(b) the place of arbitration or where the obligations shall be performed is situated outside the
State in which the parties have their places of business;
(c) the parties have expressly agreed that the subject matter of the arbitration agreement
relates to more than one country.
On the other hand, domestic arbitration is governed by R.A. 876, and pursuant to R.A. 9285,
an arbitration is domestic if it is not international as defined in the in the Model Law.

3. What are the things to be considered in appointing an arbitrator, and the corresponding
qualifications set forth in our arbitration law? [Art. 11(5), 1985 Model Law; Sec. 10, RA 876]
ANS: The appointing authority shall give due regard to the required qualifications agreed
upon by the parties and to securing the appointment of an independent and impartial
arbitrator as well as to the taking into account the advisability of appointing an arbitrator of a
nationality other than those of the parties.
Qualifications of arbitrator:
(1) Must be of legal age;
(2) Must be in full-enjoyment of his civil rights;
(3) Must know how to read and write;
(4) Shall not be related by blood or marriage within the sixth degree to either party to the
controversy;
(5) Shall have no financial, fiduciary or other interest in the controversy or cause to be
decided or in the result of the proceedings; and
(6) Shall have no personal bias whatsoever, which might prejudice the right of any party to a
fair and impartial award.

4. State the form and contents of arbitral award. [Art. 31, 1985 Model Law]
ANS:
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 (1) The award shall be made in writing and shall be signed by the arbitrator or arbitrators;
(2) It shall state the reasons upon which it is based, unless agreed by the parties that no
reasons shall be given;
(3) It shall state its date and the place of arbitration.

5. How do you understand a foreign award, and how a party obtain recognition and enforcement
thereof? [Art. IV, NY Convention]
ANS: A foreign award is one rendered by a certain country and being enforced in another
country. To obtain recognition and enforcement of such arbitral award, the party applying
therefor shall supply the court with: (a) the duly authenticated original award or a duly
certified copy thereof; and (b) the original arbitration agreement or a duly certified copy
thereof.
If the said award or agreement is not made in an official language of the issuing country, the
applicant shall produce a translation of such documents into the said official language.

6. How is party autonomy as the heart of arbitration considered under the New York convention?
[Arts. II & III, NY Convention]

ANS: Each contracting state shall recognize an arbitration agreement made and signed by the
parties, and as such, its court, when seized of an action involving such agreement, shall, upon
request, refer the parties to arbitration. Consequently, the contracting state shall also
recognize the arbitral award as binding and enforce it in accordance with the rules and
procedure of the territory where the award is relied upon.

7. Give at least five roles of courts prior and after arbitration:

ANS:
(1) Appointment of arbitrators;
(2) Challenge of arbitrators;
(3) Court assistance in taking evidence;
(4) Issuance of interim measure of protection;
(5) Enforcement of tribunal issued interim measure of protection;
(6) Recognition, enforcement, and setting aside of arbitral awards.

8. True or False. Explain your answer.

i. In arbitral proceedings with more than one arbitrator, the final decision on any issue that may
arise therein shall be made by the chairman or presiding arbitrator. [Art. 29, 1985 Model
Law]
ANS: False. Any decision of the arbitral tribunal shall be made by a majority of all its
members, unless otherwise agreed by the parties.
ii. - - - - - - -
ANS: True…
iii. In arbitration, an appeal or a petition for certiorari questioning the merits of an arbitral award
filed by one of the parties thereto may be given due course by the court. [Rule 19.7, Special
ADR Rules]

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 ANS: False. The court cannot do so because in arbitration proceedings, an arbitral award
shall be final and binding. Hence, any party thereto is precluded from filing a pertinent
action questioning the merits of an arbitral award.

iv. Any party to arbitration involving a construction dispute can file an action questioning an
arbitral award resulting therefrom. [EO 1008]
ANS: True, but only on questions of law. An arbitral award rendered by CIAC shall be
binding upon the parties. It shall be final and inappealable except on questions of law which
shall be appealable to the Supreme Court.
v. As regards recognition and enforcement of a foreign arbitral award, the same can be
reviewed and set aside by a Philippine court. [Rule 13.4, Special ADR Rules]
ANS: False. A Philippine court shall not set aside a foreign arbitral award but may refuse it
recognition and enforcement on the grounds allowed and enumerated under the Special ADR
Rules.
vi. A mediator is absolutely precluded from giving any suggestion, recommendation or personal
opinion in the course of mediation proceedings.
ANS: False. Although the primary responsibility of resolving a dispute rests with the parties
and the mediator is just a facilitator in the mediation proceedings, he may nevertheless give
suggestion, recommendation, or personal opinion in evaluative mediation or when the
parties so request.

9. A construction dispute with prior arbitration clause to be conducted by the CIAC is filed before
the RTC involving companies A and B. Can both companies agree to disregard such arbitration
clause and thereby allow the court to resolve their dispute? [Sec. 39, RA 9285; Rule 17.1, Special
ADR Rules]
ANS: Yes. To do so, companies A and B, assisted by their respective counsel, shall submit to
the RTC a written agreement exclusively for the court, rather than the CIAC, to resolve the
dispute.

10. What should the court of the contracting state do when it is seized of an action involving matter
subject of an arbitration agreement? How about on the part of other contracting states with respect
to arbitral award that may be subsequently rendered, if any?
ANS: The court, upon request of one of the parties, shall refer the parties to arbitration,
unless it finds that the said agreement is null and void, inoperative or incapable of being
performed.
Each contracting state shall recognize arbitral awards as binding and enforce them in
accordance with the rules of procedure of the territory where the award is relied upon.

11. How are arbitrators appointed? [Art. 11(3), (4); Art. 13(3); Art. 14, 1985 Model Law]
ANS: The appointment of arbitrators shall be done as follows:
(1) Without agreement on appointment procedure -
a) in an arbitration with three arbitrators, each party shall appoint one arbitrator, and
the two appointed arbitrators shall appoint the third arbitrator; if a party fails to
appoint the arbitrator, or if the two arbitrators fail to agree on the third arbitrator,

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 the appointment shall be made, upon request of a party, by the court or other
appointing authority;
b) in an arbitration with a sole arbitrator, if the parties are unable to agree on the
arbitrator, he shall be appointed, upon request of a party, by the court or other
appointing authority.
(2) With appointment procedure agreed upon by the parties -
Unless the agreement on the appointment procedure provides other means for securing
the appointment, any party may request the court or other appointing authority to take the
necessary measure where:
a) a party fails to act as required under such procedure, or
b) the parties, or two arbitrators, are unable to reach an agreement expected of them
under such procedure, or
c) a third party, including an institution, fails to perform any function entrusted to it
under such procedure.

12. How shall mediation be closed? [Art. 3.17(f), IRR of RA 9285]

ANS: The mediation shall be closed:
(1) by the execution of a settlement agreement by the parties;
(2) by the withdrawal of any party from mediation; and
(3) by the written declaration of the mediator that any further mediation effort would not be
helpful.

13. State the role of lawyer in mediation? [Art. 3.15 & 3.16, IRR of RA9285]
ANS:
(1) The lawyer shall view his role in the mediation as a collaborator with the other lawyer;
(2) He shall encourage and assist his client to actively participate in the proceedings to
resolve their dispute;
(3) He must assist his client to comprehend and appreciate the mediation process and its
benefits;
(4) He shall confer and discuss with his client the process and substance of mediation;
(5) He shall give support to the mediator so that his client will fully understand the rules and
processes of mediation;
(6) He shall assist his client and the mediator put in writing the terms of the settlement
agreement entered into by the parties.

II.
1.
a) In the arbitration proceedings, parties A and B agree to settle their dispute by themselves. Can
both parties enter into a settlement? What will be its effect? Explain. [Art. 30, 1985 Model
Law]
ANS: Yes, A and B can enter into a settlement of their dispute since the Model Law provides
that:
1. If, during arbitral proceedings, the parties settle the dispute, the arbitral tribunal shall
terminate the proceedings and, if requested by the parties and not objected to by the
arbitral tribunal, record the settlement in the form of an arbitral award on agreed terms.
2. An award on agreed terms shall state that it is an award which shall have the same form,
contents, status and effect as any other award on the merits of the case.

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 b) What is an interim measure? What are the conditions as well as the grounds for granting such
measure? [Art. 17(2) & 17-A, 2006 Model Law; Rule 5.4, Special ADR Rules; Art. 5.16(c)(ii),
IRR of RA 9285]

ANS: An interim measure is any temporary measure, whether in the form of an award or in
another form, by which, at any time prior to the issuance of the final arbitral award, the
arbitral tribunal orders a party to:
1. Maintain or restore status quo;
2. Prevent, or refrain from causing harm or prejudice to the arbitral process;
3. Preserve assets to be used to satisfy an award; or
4. Preserve relevant and material evidence.
The party requesting an interim measure shall satisfy the arbitral tribunal that:
1. The harm that may be sustained by the requesting party cannot be adequately compensated
by an award of damages, and such harm is much greater if the measure is denied than that
of the other party if the measure is granted; and
2. There is a reasonable possibility that the requesting party will succeed on the merits of the
claim.
The grounds for granting an interim measure of protection are as follows:
1. The need to prevent irreparable loss or injury;
2. The need to provide security for the performance of any obligation;
3. The need to produce or preserve evidence; or
4. The need to compel any other appropriate act or omission.
c) What are the interim measures that may be ordered by the arbitral tribunal or that may be
granted by the court? [Art. 5.16(a), IRR of RA 9285; Art. 5.6, Special ADR Rules]
ANS: Such interim measures may include the following:
1. Preliminary injunction directed against a party;
2. Appointment of receivers;
3. Detention, preservation, delivery or inspection of property;
4. Preliminary attachment against property; and
5. Garnishment of funds in the custody of bank or third person;
d) When to file in court a petition for interim measure of protection? [Rule 5.2, Special ADR
Rules]
ANS: A petition for an interim measure of protection may be made on:
1. Before arbitration is commenced;
2. After arbitration is commenced, but before the constitution of the arbitral tribunal; or
3. After the constitution of the arbitral tribunal and at any time during arbitral proceedings
but, at this stage, only to the extent that the arbitral tribunal has no power to act or is
unable to act effectively.

2.
a. A contract for a construction project has an arbitration clause made by the parties. To that
effect, does an arbitral tribunal have jurisdiction to settle a dispute arising therefrom?
Elaborate. [Sec. 4, EO 1008; Sec. 35 RA 9285]
ANS: Only the CIAC has original and exclusive jurisdiction over construction disputes, hence,
an arbitral tribunal cannot arbitrate to settle the dispute in question.

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 b. An action involving a construction dispute was brought before the court, which upon becoming
aware that the parties had entered into an arbitration agreement, referred the dispute to
arbitration. Is the court’s action correct? Explain. [Rule 17.1, Special ADR Rules; Sec. 39, RA
9285]
ANS: The court is partly correct. In the case at bar, the court should have, motu proprio or
upon motion made not later than pre-trial, dismiss the case and refer the parties to arbitration
to be conducted by the CIAC, unless both parties, assisted by their respective counsel, submit
to the court a written agreement making the latter, rather than the CIAC, a body that would
exclusively resolve their dispute.
c. From the foregoing case, a motion for the dismissal of the civil action and referral to
arbitration has been filed before the court, but no opposition thereto has been filed, hence, a
hearing based on the facts alleged in the motion followed. What then the court shall do
thereafter? Elaborate. [Rule 17.5, Special ADR Rules; Se. 39, RA 9285]
ANS: The court shall dismiss the civil action and refer the parties to arbitration if it finds that
there is a valid and enforceable arbitration agreement involving a construction dispute.
Otherwise, the court shall proceed to hear the case.
Notwithstanding the existence of such arbitration agreement involving the said dispute,
however, the court can still proceed to hear the case if both parties, assisted by their
respective counsel, submit a written agreement exclusively for the court, rather than the CIAC,
to resolve their dispute.

3. There is an action prematurely brought before the court involving a dispute which is the subject of
a mediation clause entered into by the parties.
a) May the said dispute be referred to mediation? If so, how does such referral be made?
[Art. 3.2, IRR of RA 9285; Rule 17.1, Special ADR Rules]
ANS: Yes. Any party not later than pre-trial conference, or both parties thereafter, may
petition or request the court to refer them to mediation in accordance with their
agreement.
b) From the preceding question, may the court, by its own initiative, refer the parties to
mediation? What will be the court’s proper action under such circumstances? [Art. 3.2,
IRR of RA 9285; Rule 2.5, Special ADR Rules]
ANS: No. The court shall do so only upon the request of either at least one or both
parties, as the case maybe.
c) What will be the court’s proper action under the foregoing circumstances? [Art. 3.2, IRR
of RA 9285; Rule 2.5, Special ADR Rules]
ANS: The court, upon duly requested by any or both parties as the case maybe, shall
suspend the proceedings and direct the parties to submit their dispute to private
mediation, or to court-annexed mediation if the parties subsequently so agree thereto.
d) During the mediation proceedings, can the mediator compel or coerce any party in order
to expedite the proceedings? Explain. [Sec. 8, RA 9285; Art. 3.2, IRR of RA 9285]
ANS: No, the mediator has no authority to do so because he only facilitates the
proceedings and helps the parties reach a satisfactory resolution to their dispute. It must
be borne in mind that in mediation process, the amicable resolution of disputes is

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 undertaken in accordance with the principles of integrity of determination by the parties,
and the policy that the decision-making authority rests with the parties.
e) After a successful mediation, what will be done with the mediated settlement agreement?
[Sec. 17(c) and (d), RA 9285; Rule 15, Special ADR Rules]
ANS: The settlement agreement may be deposited with the Clerk of Court of RTC if the
parties so desire, and as need arises, any of the parties may file a verified petition with
the same court to enforce said agreement. Furthermore, if the parties may also agree, the
settlement agreement shall be converted into an arbitral award which shall be
enforceable under RA 876.

4. What is the extent of court intervention in arbitration proceedings? [Art. 5, 1985 Model Law]
ANS: The court shall intervene only in limited instances allowed and enumerated in our ADR
Law. It is also precluded from enjoining the arbitration proceedings during the pendency of
the petition. Judicial recourse to the court shall not prevent the arbitral tribunal from
continuing the proceedings and rendering its award.

III.
1. How is party autonomy manifested by the parties and given due consideration by the court? [Art.
II, NY Convention; Art. 8, 1985 Model Law]
ANS: It is shown by the execution of the agreement by the parties to submit their dispute to
arbitration. As such, if a party so requests not later than when submitting his Answer, the
court before which an action is brought in a matter which is the subject of an arbitration
agreement, shall refer the parties to arbitration, unless it finds that the agreement is null and
void, inoperative or incapable of being performed.
Accordingly, the arbitral proceedings may nevertheless be commenced or continued, and an
award may be made, while the issue is pending before the court.

2. How are arbitral proceedings terminated? [Art. 32, 1885 Model Law]
ANS: The arbitral proceedings are terminated by the final award of the arbitral tribunal or by its
termination order which is issued when:
(1) the claimant withdraws his claim, and the respondent does not object thereto;
(2) the parties agree on the termination of the proceedings;
(3) the continuation of the proceedings becomes unnecessary or impossible.

3. Distinguish mediation from arbitration. [Sec. 3(q), RA 9285; Art. 1.6(A)3(B)6, IRR of RA 9285]
ANS: Mediation is a voluntary process in which a mediator, selected by the disputing parties,
facilitates communication and negotiation, and assist the parties in reaching a voluntary
agreement regarding a dispute.
Whereas, arbitration is a voluntary dispute resolution process in which one or more
arbitrators, appointed in accordance with the agreement of the parties or the IRR of RA 9285,
resolve a dispute by rendering an award

4. Distinguish court-annexed mediation from private mediation (court-referred mediation). [Art.

1.6(B)3&4, IRR of RA 9285]

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ANS: Court-annexed mediation is a mediation process conducted under the auspices of the
court and in accordance with Supreme Court approved guidelines, after such court has
acquired jurisdiction of the dispute.
On the other hand, private mediation is a mediation ordered by a court to be conducted in
accordance with the agreement of the parties when an action is prematurely commenced in
violation of such agreement.