Introduction

GENERAL CONCEPTS
Why do we need to study adr?
• Concept of ADR is relatively new in the Philippines, although ADR has been present ever since.
• ADR gives parties the opportunity to resolve issues among themselves.
o Resolution of cases without going to court.

Ra 9285: the adr act of 2004

• An Act To Institutionalize The Use Of An Alternative Dispute Resolution System In The Philippines And To
Establish The Office For Alternative Dispute Resolution, And For Other Purposes.
o Institutionalizes the use of ADR in order to solve cases not necessarily in court.
• Agencies involved:
o The office of Alternative Dispute Resolution is under the Department of Justice.
o Under the lawmaking powers of the Supreme Court, it has the exclusive power to promulgate rules
concerning the protection and enforcement of constitutional rights, pleading, practice, and procedure
in all courts, the admission to the practice of law, the integrated bar, and legal assistance to the
underprivileged.

Adr and judicial dispute resolution

• Why is there a need for ADR if there is already judicial dispute resolution or court-annexed dispute
resolution?
o ADR is without prejudice to judicial resolution rules.
o There is no conflict between the two
• What is important is the goal of both is the same: provide autonomy for parties to resolve their issues
outside of court.
• Purpose: to unclog the dockets of the court and harmonize issues of parties.

How do we resolve conflicts

a) Traditional or Conventional method: through the courts.
b) Basic ADR: Katarungang Pambarangay Law.
▪ Settlement of disputes before the Lupon or Pangkat.
c) Customs and traditions practiced by tribes in the Philippines.
▪ Those who are members of indigenous cultural communities can make use of customs and
traditions (cultural practices) being practiced by their tribes.
d) ADR Law

KATARUNGANG PAMBARANGAY LAW

General concepts
• Found in RA 7160, The Local Government Code, Chapter 7.
o In the Local Government Code, the Barangay is recognized as one local government unit.
• Purpose: settle disputes among residents of the same city or municipality.

Composition
• Lupon Tagapagpamayapa
o There is one constituted in every barangay.
o The Chair is the Punong Barangay; There are 10-20 members.
• Pangkat ng Tagapagkasundo: Conciliation Panel
o Made up of three members, selected from the Lupon.
o For every dispute, there is a different Pangkat.
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Venue
• If the parties are in different barangays, but in the same city, in whose barangay will the action be brought?
o Either barangay, at the option of the complainant
• If there are several respondents, in whose barangay should the action be brought?
o A barangay where any of the respondents reside.
• If the respondent and complainant live in different cities, then there is no need to bring the action before
the barangay before filing with the court.
• If a property is covered by two adjoining barangays:
o The barangay where a greater portion is situated;
o If equal: either barangay.

initial steps
a) There is a dispute.
b) The dispute is brought to the Barangay Captain.
c) If the issue is not resolved, it is brought to the Pangkat ng Tagapagkasundo.
d) If the dispute is still not resolved, the issue is brought to the Lupon Tagapagpamayapa.

When the issue can be brought before the barangay

• Criminal Cases:
o Limitations:
a) Only crimes punishable by imprisonment of one year or a fine of below 5,000 pesos can be brought
before the Lupon.
- Basically, light offenses. Those falling under summary proceedings.
- Such as: slight and less serious physical injuries, coercion, grave threats.
b) Only crimes with victims can be brought before the Lupon
- Victimless crimes: Punishable by special laws, such as the Anti-Drugs Law, Firearms Code,
Forestry Code.
o A criminal case is never compromised. There can never be settlement of a criminal case.
▪ Article 100, RPC. Every person criminally liable for a felony is also civilly liable.
▪ What is settled is only the civil aspect of the crime.
▪ The civil liability is settled, but the criminal aspect remains.
o Effect on criminal charge:
▪ Testimony of the victim is necessary to secure a conviction. Becomes problem if the victim does not
testify due to settlement of the civil aspect.
▪ The reason for the non-continuance of the criminal case is not the settlement of the civil aspect
itself, but rather because without the testimony of the victim, guilt beyond reasonable doubt cannot
be proven
o Exceptions: where there is no need for prior barangay conciliation
a) Offenses punishable by imprisonment exceeding one (1) year or a fine exceeding P5,000
b) Offenses where there is no private offended party
c) A criminal case where the accused is under police custody or detention
• Civil Cases:
o All civil cases are referrable to the Lupon, except:
a) Where one party is the government or any subdivision or instrumentality thereof;
b) Where one party is a public officer or employee, and the dispute relates to the performance of his
official functions
c) Where the dispute involves real properties located in different cities or municipalities unless the
parties thereto agree to submit their differences to amicable settlement by an appropriate Lupon

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Saint Louis University School of Law • Second Semester 2020-2021
 d) Disputes involving parties who actually reside in barangays of different cities or municipalities,
except where such barangay units adjoin each other and the parties thereto agree to submit their
differences to amicable settlement by an appropriate Lupon
e) Such other classes of disputes which the President may determine in the interest of justice or upon
the recommendation of the Secretary of Justice
f) Any complaint by or against corporations, partnerships, or juridical entities.
- The reason is that only individuals shall be parties to barangay conciliation proceedings either as
complainants or respondents
g) Disputes where urgent legal action is necessary to prevent injustice from being committed or further
continued, specifically:
h) A petition for habeas corpus by a person illegally detained or deprived of his liberty or one acting in
his behalf
i) Actions coupled with provisional remedies, such as preliminary injunction, attachment, replevin and
support pendente lite
j) Where the action may be barred by statute of limitations
k) Labor disputes or controversies arising from employer-employee relationship
l) Where the dispute arises from the CARL
m) Actions to annul judgment upon a compromise which can be directly filed in court.
o Other cases which are brought directly to court:
a) Land registration cases;
b) Cases involving status of persons: Annulment of marriage, legal separation.
c) Adoption and Guardianship;
d) Cases involving succession or hereditary rights;
- Reason: one can never compromise their legitime.
e) If the dispute happens in the workplace, but the parties live in different cities or municipalities
- In cases there is no criminal charge, but the parties claim damages
- The case is cognizable by the Barangay, but it should be the Barangay where the workplace is
located.
• Example: if the dispute occurred in the workplace in Loakan, but the complainant filed the action before
the Barangay of Aurora Hill, can the respondent object?
o Yes. During the first meeting in Barangay Aurora Hill, the respondent can raise the objection to venue
before the Punong Barangay.
o If the respondent does not object, however, the venue is deemed assented to.

Procedure:
• The complainant goes to the Barangay to file the complaint.
o Should it be in writing? No. it may be oral or written.
▪ The complaint does not even have to be formal.
o If either the complainant or respondent is a minor or incompetent:
▪ They may be represented by next of kin, who should not be a lawyer.
• The barangay captain summons the respondent and sets the date for hearing.
o Done immediately, because the conflict should be resolved as soon as possible.
o The complaint is attached to the summons.
o The respondent is ordered to appear before the barangay.
▪ When individuals are summoned, they are to appear personally, and without a lawyer.
o The barangay captain attempts to conciliate.
o Mediation should be done within fifteen (15) days of the first hearing day.
• If a settlement is reached, it is called an amicable settlement.
o The amicable settlement should always be in writing.
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 o Written in the dialect or language spoken by both parties so they will understand it.
▪ If they speak different dialects, then it can either be written in two different dialects, or in a dialect
commonly understood by both parties.
o The amicable settlement should be signed by both parties, and attested to by the Lupon chair.
o Within ten (10) days from the settlement date, the parties can repudiate the settlement.
▪ Ground/Basis: only one - vitiation of consent.
- That there was really no actual confrontation.
▪ If the settlement is not repudiated, then it has the same force and effect as if it was a judgement
rendered by the court.
• If the parties are unable to settle: the barangay captain constitutes the Pangkat.
o Any party can object to the members of the Pangkat.
o The same process is repeated: notice, attempt at settlement
o Mediation and Conciliation vs Arbitration
▪ During mediation or conciliation, the parties agree among themselves.
▪ During arbitration, a third party listens to the sides of both parties and after, the Pangkat decides
the entitlements of both parties and renders their ruling.
o The ruling of the Pangkat is final, but can be repudiated.
▪ Parties have five days to repudiate the arbitration award.
▪ If the ruling is not repudiated, after the lapse of five days., there is a formal issuance of an arbitration
award.
o The arbitration award should also be in writing in a dialect known to and understood by both parties,
signed by them, and attested to by the Pangkat.
▪ The arbitration award is a final judgement as if it was issued by a court.
• The arbitration award is then implemented by the Lupon.
o When: six (6) months from the time the arbitration award becomes final.
▪ Reckoned from: after the end of the ten-day repudiation period.
o Benefit of filing in the respondent’s barangay: implementation
▪ In the arbitration award, the respondent is usually made to pay
▪ When it is time for implementation, it would be easier to enforce the award because the respondent
is a constituent of the barangay which rendered the award.
o If the dispute is resolved by the Lupon of the complainant’s barangay:
▪ To implement the award, they would be operating outside their area of jurisdiction.
▪ Thus would need to coordinate with the lupon of the place where the respondent lives.
▪ Problem: causes delay.
• If, after six months, the award is not implemented: the remedy of the complainant is to go to court.
o Court: Municipal Trial Court
o Action: enforcement of barangay amicable settlement or enforcement of barangay conciliation award.
o The court implements the award by issuing a writ of execution. The sheriff will collect the amount due.
o Levy on personal properties: except those which a person needs for his profession.
▪ Rule 39, Rules of Civil Procedure.
• If there is still no resolution by the Lupon:
o The Lupon issues a certificate to file action, and attaches the complaint thereto.
o Referral to the Lupon is a condition precedent to the filing of an action in court, and failure to do so
could be grounds for dismissal of the action.
▪ Previously: dismissed for failure to comply with condition precedent.
▪ Current Rule: filed as an affirmative defense in the answer – failure to comply with a condition
precedent.
o If there is a repudiation of the award, the parties can also secure a certificate to file action.

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Saint Louis University School of Law • Second Semester 2020-2021
Other rules
• Effect of referral to Lupon:
o Suspension of the prescriptive period. Suspension of the time for filing a complaint.
▪ Example: prescriptive period for written contracts is ten years.
o If a complaint is filed with the Lupon, the prescriptive period for that offense is suspended
▪ suspended until: a certificate to file action is issued.
o Limitation: suspended only for a maximum of sixty days.
• 15 days, extendible for another 15 days provided there are meritorious reasons.
o Depends on the discretion of the Pangkat.
• Effect of death:
o If it is a case that survives, then the successors in interest inherit the complaint for the deceased party.
• Is it open to the public? Yes
o Except, if in the interest of privacy, decency, public morals, the proceedings need to be closed.
• Repudiation must always be written
o Reason: because it is a sworn statement.
o Needs to be subscribed and sworn before any party authorized to administer oaths.
• Forwarding to the court
o From the date of the award and lapse of ten day repudiation period, the Lupon forwards the arbitration
award to the Municipal Trial Court.
o Reason: because if there is no execution at the barangay level, any action going forward will be filed
with the Municipal Trial Court.
• The Lupon must also ensure that both parties are given a copy of the arbitration award.
• Only requirement for barangay conciliation: that the person is physically residing in that barangay.
• In case of absence of the Punong Barangay, the acting Punong Barangay will head the proceedings.
• Fees: there are fees to be paid, but only minimal “filing fees.”

Direct resort to the courts:

• If the person is a detention prisoner (caught in flagrante delicto or during hot pursuit).
o Even if the penalty is less than imprisonment of one year, there is no need to go to the Lupon.
o Reason: hampers the right to a speedy trial.
• If the action is one for habeas corpus.
• If the action carries with it a provisional remedy.
o Such as attachment, preliminary injunction, etc.
o Provisional remedies are temporary remedies meant to provide relief to the complainant
• If the action is about to prescribe
o No longer need to go to the Lupon, can go directly to court.

RECITATION NOTES
Miguel v. Montanez, G.R. No. 191336, January 25, 2012
• Two options of aggrieved party:
o Come into play only if there is no compliance with the provisions of the agreement.
▪ “May”: it is merely directory or permissive; the winning party has the choice.
a) Regular Form: enforce as if there was no prior resort to the Lupon. Collection of Sum of Money case.
b) If there was prior resort to the Lupon: Petition to Enforce Amicable Settlement.
• Jurisdiction of courts
o In Civil Cases, the Municipal Trial Courts have jurisdiction over money claims below 300,000 outside
Metro Manila, and below 400,000 in Metro Manila.
o If the claim is 400,000 pesos, in Baguio, the parties first need to go to the Lupon.
▪ Agree, settle, if there is no repudiation, and the Lupon tries to enforce the decision but is unable to.
LAW 227: Alternative Dispute Resolution • Atty. Marybelle Mariñas gabrielle
Saint Louis University School of Law • Second Semester 2020-2021
 ▪ Since the settlement cannot be enforced, file a petition before the Municipal Trial Court for
enforcement of the barangay settlement.
o But will it be within the jurisdiction of the MTC, since the claim is 400,000? YES
▪ Because the case is not one for collection of sum of money, but for enforcement of barangay
settlement, which is within the jurisdiction of the Municipal Trial Courts regardless of the amount
involved.
• If the aggrieved party so wished, non-compliance can be treated as a rescission of the settlement.
o Effect: the kasunduan is disregarded and the aggrieved party can file a case for collection of sum of
money.
o It is an original action, filed with the Regional Trial Court, since the amount being collected is more than
300,000.
• Enforcement: necessary to prove that the kasunduan has not been repudiated or cancelled.
o There is a need to prove that the party is entitled to the amount being claimed.

Malecdan vs baldo
• No lawyers are allowed during barangay conciliation proceedings.
• Because if there is general spontaneity between the parties, it is more conducive to reaching an amicable
settlement.

LAW 227: Alternative Dispute Resolution • Atty. Marybelle Mariñas gabrielle

Saint Louis University School of Law • Second Semester 2020-2021
 Arbitration Laws
RA 9285
The law
• Is it the first and only Arbitration Law in the Philippines? No
o 1953: Philippine Congress enacted RA 876, The Philippine Arbitration Law
▪ Made arbitration inexpensive, speedy, and amicable method of settling disputes and avoiding
expensive litigation.
o June 10, 1958: Philippines became a signatory to the United Nations Convention on the Recognition
and Enforcement of Foreign Arbitral Awards.
▪ The 1958 New York Convention.
▪ Recognize foreign arbitral awards.
o 50 years later, on April 2, 2004, RA 9285 came into being.
• RA 9285 Adopted the provisions of the Arbitration Law of 1953.
o Also specifically manifested adherence to New York Convention.
o RA 9285 is now fully in effect

Policy of the Law:

• SEC. 2. Declaration of Policy. - it is hereby declared the policy of the State to actively promote party
autonomy in the resolution of disputes or the freedom of the party to make their own arrangements to
resolve their disputes. Towards this end, the State shall encourage and actively promote the use of
Alternative Dispute Resolution (ADR) as an important means to achieve speedy and impartial justice and
declog court dockets. As such, the State shall provide means for the use of ADR as an efficient tool and
an alternative procedure for the resolution of appropriate cases. Likewise, the State shall enlist active
private sector participation in the settlement of disputes through ADR. This Act shall be without prejudice
to the adoption by the Supreme Court of any ADR system, such as mediation, conciliation, arbitration, or
any combination thereof as a means of achieving speedy and efficient means of resolving cases pending
before all courts in the Philippines which shall be governed by such rules as the Supreme Court may
approve from time to time.
• Policy is to promote party autonomy in resolving disputes.
o Gives parties the choice to resolve their disputes among themselves, without going to court.
o Provides for how parties will settle their disputes without going to court.

Methods: mediation, arbitration, conciliation, early neutral evaluation, and mini-trial.

• "Arbitration" means a voluntary dispute resolution process in which one or more arbitrators, appointed in
accordance with the agreement of the parties, or rules promulgated pursuant to this Act, resolve a dispute
by rendering an award;
• "Early Neutral Evaluation" means an ADR process wherein parties and their lawyers are brought together
early in a pre-trial phase to present summaries of their cases and receive a nonbinding assessment by an
experienced, neutral person, with expertise in the subject in the substance of the dispute;
• "Mediation" means 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.
• "Mini-Trial" means a structured dispute resolution method in which the merits of a case are argued before
a panel comprising senior decision makers with or without the presence of a neutral third person after
which the parties seek a negotiated settlement;

Alternative dispute resolution and the courts

• When we talk of ADR, all these methods are outside the involvement of the court.
o But eventually, the court will be involved.
LAW 227: Alternative Dispute Resolution • Atty. Marybelle Mariñas gabrielle
Saint Louis University School of Law • Second Semester 2020-2021
• Does not cover those the Supreme Court may adopt as ways of solving disputes.
o Meditation is under Alternative modes of dispute resolution.
• But there is also court-annexed meditation: this is not under the ADR Act, it is under a circular of the
Supreme Court, and rules on when it is to be applied is included in the Rules of Court.
o 2019 amendments to the Rules of Civil Procedure recognizes court annexed mediation.
o It was recognized before and being practiced, but it was not in the Rules. It was under Rule 18 on Pre-
Trial.
▪ because under Pre-Trial, other methods of dispute resolution are looked into
▪ So court-annexed mediation was looked upon as a method of alternative dispute resolution.
o Mediation under ADR does not include court annexed mediation.

COVERAGE
Mediators and arbitrators
• In mediation, mediators let parties agree to reach a compromise agreement
• In arbitration, there is an arbitral tribunal comprised of one, two, or three, depending on the agreement of
the parties.
o The tribunal listens to the parties and decides on the arbitral award.
• Mediators and arbitrators are called “ADR providers and practitioners.”

liability
• Under the ADR act, liability will be as public officers and the liability is contained under the Administrative
Code.
• Section 38, Chapter 9: liability of public officers
o Public officers shall not be civilly liable for acts done in the performance of their functions, unless there
is a clear showing of bad faith, malice, or gross negligence.
o For ADR providers and practitioners, there is no civil liability, but can incur criminal liability.
• If there are damages or injuries to the parties who are part of mediation, the practitioner in s not liable
civilly unless there is a showing of bad faith, malice, or gross negligence.

Coverage: Does “arbitration” refer to any and all disputes

• No. the law itself provides those which are exempted from application of ADR.
• SEC. 6. Exception to the Application of this Act. - The provisions of this Act shall not apply to resolution or
settlement of the following:
(a) labor disputes covered by Presidential Decree No. 442, otherwise known as the Labor Code of the
Philippines, as amended and its Implementing Rules and Regulations;
(b) the civil status of persons;
(c) the validity of a marriage;
(d) any ground for legal separation;
(e) the jurisdiction of courts (conferred by law, can never be the subject of stipulation);
(f) future legitime (otherwise all laws on succession will be rendered nugatory);
(g) criminal liability (can never compromise criminal liability); and
(h) those which by law cannot be compromised.

Mediation
• Does not cover court-annexed mediation, only covers voluntary mediation.
• How will parties go about it?
o In their agreement, parties will say that “should any conflict arise, the parties agree to enter into
mediation.”
o So parties go to a mediator, agree to be bound by whatever is arrived at during mediation.

LAW 227: Alternative Dispute Resolution • Atty. Marybelle Mariñas gabrielle

Saint Louis University School of Law • Second Semester 2020-2021
• Office of ADR:
o Government office created under the law.
o Are there also private ADR providers? Yes.

CONFIDENTIALITY
Confidentiality rule
• Common in all ADR modes: confidentiality of information.
• SEC. 9. Confidentiality of Information. - Information obtained through mediation proceedings shall be
subject to the following principles and guidelines:
a) Information obtained through mediation shall be privileged and confidential.
b) A party, a mediator, or a nonparty participant may refuse to disclose and may prevent any other
person from disclosing a mediation communication.
c) Confidential Information shall not be subject to discovery and shall be inadmissible if any adversarial
proceeding, whether judicial or quasi-judicial, However, evidence or information that is otherwise
admissible or subject to discovery does not become inadmissible or protected from discovery solely
by reason of its use in a mediation.
d) In such an adversarial proceeding, the following persons involved or previously involved in a mediation
may not be compelled to disclose confidential information obtained during mediation: (1) the parties
to the dispute; (2) the mediator or mediators; (3) the counsel for the parties; (4) the nonparty
participants; (5) any persons hired or engaged in connection with the mediation as secretary,
stenographer, clerk or assistant; and (6) any other person who obtains or possesses confidential
information by reason of his/her profession.
e) The protections of this Act shall continue to apply even of a mediator is found to have failed to act
impartially.
f) a mediator may not be called to testify to provide information gathered in mediation. A mediator who
is wrongfully subpoenaed shall be reimbursed the full cost of his attorney's fees and related expenses.
• “Cannot be the subject of discovery”
o Rules 24 to 29, Rules of Civil Procedure on modes of discovery: methods sanctioned by the rules to
allow parties to gather evidence which they may use to build their case or refute the evidence of the
other party.
o Such as: production or inspection of documents.
▪ If payment is being demanded, but the party has already paid. and he knows there is a receipt of
payment but it is in the possession of the adverse party.
▪ The party can resort to modes of discovery, specifically production or inspection of documents.
o However, when it comes to matters under mediation, these are privileged and confidential.

Exceptions
• Privileged communication: such as conversations between husband and wife, lawyer-client relationship
• SEC. 11. Exceptions to Privilege. -
a) There is no privilege against disclosure under Section 9 if mediation communication is:
▪ (1) in an agreement evidenced by a record authenticated by all parties to the agreement;
▪ (2) available to the public or that is made during a session of a mediation which is open, or is required
by law to be open, to the public;
▪ (3) a threat or statement of a plan to inflict bodily injury or commit a crime of violence;
▪ (4) internationally used to plan a crime, attempt to commit, or commit a crime, or conceal an ongoing
crime or criminal activity;
▪ (5) sought or offered to prove or disprove abuse, neglect, abandonment, or exploitation in a
proceeding in which a public agency is protecting the interest of an individual protected by law; but

LAW 227: Alternative Dispute Resolution • Atty. Marybelle Mariñas gabrielle

Saint Louis University School of Law • Second Semester 2020-2021
 this exception does not apply where a child protection matter is referred to mediation by a court or
a public agency participates in the child protection mediation;
▪ (6) sought or offered to prove or disprove a claim or complaint of professional misconduct or
malpractice filed against mediator in a proceeding; or
▪ (7) sought or offered to prove or disprove a claim of complaint of professional misconduct of
malpractice filed against a party, nonparty participant, or representative of a party based on conduct
occurring during a mediation.
b) There is no privilege under Section 9 if a court or administrative agency, finds, after a hearing in
camera, that the party seeking discovery of the proponent of the evidence has shown that the
evidence is not otherwise available, that there is a need for the evidence that substantially outweighs
the interest in protecting confidentiality, and the mediation communication is sought or offered in:
▪ (1) a court proceeding involving a crime or felony; or
▪ (2) a proceeding to prove a claim or defense that under the law is sufficient to reform or avoid a
liability on a contract arising out of the mediation.
c) A mediator may not be compelled to provide evidence of a mediation communication or testify in such
proceeding.
d) If a mediation communication is not privileged under an exception in subsection (a) or (b), only the
portion of the communication necessary for the application of the exception for nondisclosure may be
admitted. The admission of particular evidence for the limited purpose of an exception does not render
that evidence, or any other mediation communication, admissible for any other purpose.
• Exemptions:
a) Always an exception when there is an agreement by the parties.
▪ Parties waive their right to confidentiality.
b) Waiver: confidentiality can be waived during the mediation.
▪ Mediator will inform the parties that proceedings are confidential, but a party can say, on record,
that they are waiving the confidentiality protection.
▪ Waiver can either be on record, or part of the proceedings – if the party manifests so, or even made
in a document waiving confidentiality.

PROCEEDINGS
Responsibility of the mediator
• The mediator should know the parties, go over the facts, and when he sees that there may be a conflict
of interest, it is incumbent upon him to recuse himself.
o The mediator should not accept to be the mediator in this case.
• What if the mediator discovers a conflict of interest and does not disclose it?
o The proceedings can be considered null and void.
o Because the proceedings were conducted by a mediator who had an interest.
o Especially if the decision favors the one the mediator is connected to.
• Can the aggrieved (losing) party file a case for damages against the mediator?
o Yes, if it can be established that the mediator acted with bad faith, malice, or gross negligence by not
stating his conflict of interest.

Settlement agreement
• The moment there is a settlement agreement, all the parties will be signing the agreement.
• How is it enforced?
o Because it is an agreement, it is incumbent upon the parties to fulfill the terms and conditions.
o The moment a settlement agreement is signed, the parties bind themselves to comply with the
settlement agreement.

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Saint Louis University School of Law • Second Semester 2020-2021
• What if a party does not comply?
o The aggrieved party can go to court and file a case for the enforcement of the settlement agreement.
• Court: usually the Regional Trial court.
o Only a case for enforcement of a barangay settlement can be filed with the Municipal Trial Court.
o But if it is a settlement agreement by the parties, the enforcement is within the powers of the Regional
Trial Court.
o Which is why it would be best to submit a copy of the settlement with the Clerk of Court of the Regional
Trial Court, in the event that it would have to be enforced by court process.
• Court participation in ADR: only for enforcement.

INTERNATIONAL COMMERCIAL ARBITRATION

Model law
• We are adopting the model law on international commercial arbitration.
o Adopted by the United Nations Commission on International Trade Law (UNCITRL)
o Model law: it is a law which all countries should adopt in terms of international commercial arbitration.
• Importance: if all countries adopt it, whenever there is an international commercial arbitration in a country,
there is no fear that the domestic law instead will apply and might be affected.
o Assured of safety because what is being used is a law recognized by the United Nations.
• Under Section 19 of RA 9285, it adopts the model law insofar as international commercial arbitration.
o So whenever there is a problem as to the interpretation of chapter 4 (on international commercial
arbitration), refer back to the model law.
• Travaux preparatories : preliminary activities.
o In other words, the history behind the preparation of the model law.
o In interpreting the laws on international commercial arbitration, go to the history of the model law,
because it is adopted in our laws.
• Why is it adopted only now?
o Because the Philippines recognizes the effects of globalization.
o Globalization affects commercial transactions.

Commercial arbitration:
• International transactions
o Commercial: business, economics, trade.
o Globalization and technology have had an enormous effect on international trade.
o Also requires domestic laws to adopt alternative modes of dispute resolution which are friendly and
applicable to these commercial transactions.
• Transactions in the international commercial scene are between and among people of many nationalities.
o Removes the issue of whose law should apply, the law of which country.
o Venue/business offices are scattered, and transactions occur across borders.
o Which is why by adopting the model law, foreign investors will feel assured that the Philippines can be
an international commercial arbitration center.

Problem: Section 22 – legal representative in international arbitration.

• When an international arbitration is done in the Philippines.
o Such as if the Philippines orders goods from Finland, and Finland commissions a Greek shipping
company to bring the goods to the Philippines, however, the shipping company does not transport
directly to Manila, but has its office in Singapore, before it is transported to the Philippines.
o If something happens during transportation, who will be liable? The parties arbitrate, but where will the
arbitration be done?
o In the Philippines because it is the owner of the goods. But who will represent the other countries?

LAW 227: Alternative Dispute Resolution • Atty. Marybelle Mariñas gabrielle

Saint Louis University School of Law • Second Semester 2020-2021
• Section 22: party may be represented by any party of his choice. Does not need to be a lawyer, can be
anybody.
o Problem: are foreigners, who are not lawyers, allowed to represent a party in arbitration?
o Effect on local practice of law: deprived of the right to practice profession because of the entry of
foreigners who are not lawyers. May be tantamount to surrender of sovereignty.
• Solution: In international arbitration, any person may appear.
o It benefits the image of the Philippines as an international commercial arbitration center.
o Foreign representatives are not well-versed with laws in the Philippines, so they will hire local lawyers
to assist.
o Encourages lawyers in the Philippines to take up international commercial arbitration, and exposes
them to new dimensions in the practice of law.
• Limitation: “Provided, that such representative, unless admitted to the practice of law in the Philippines,
shall not be authorized to appear as counsel in any Philippine court.”
o If they have to go to court, the foreign party who is not a lawyer in the Philippines cannot appear in
court.
o Because according to our laws, only lawyers in the Philippines can appear before courts.
o So the appearance of foreigners who are non-lawyers is only limited to their appearance before the
arbitration tribunal, and nothing else.

Confidentiality
• Inasfar as international commercial arbitration, the confidentiality protection also applies
o SEC. 23. Confidential of Arbitration Proceedings. - The arbitration proceedings, including the records,
evidence and the arbitral award, shall be considered confidential and shall not be published
• Exceptions:
o (1) with the consent of the parties, or
o (2) for the limited purpose of disclosing to the court of relevant documents in cases where resort to the
court is allowed herein.
o Provided, however, that the court in which the action or the appeal is pending may issue a protective
order to prevent or prohibit disclosure of documents or information containing secret processes,
developments, research and other information where it is shown that the applicant shall be materially
prejudiced by an authorized disclosure thereof.

Referral to arbitration
• SEC. 24. Referral to Arbitration. - A court before which an action is brought in a matter which is the subject
matter of an arbitration agreement shall, if at least one party so requests not later that the pre-trial
conference, or upon the request of both parties thereafter, refer the parties to arbitration unless it finds
that the arbitration agreement is null and void, inoperative or incapable of being performed.
o “Court”: Regional Trial Court.
• Arbitration is preferred.
o If an action is brought to court, and this action is the subject matter of an arbitration agreement, the
court should refer the parties to arbitration.
o “Shall” : mandatory in nature.
• These referrals to arbitration are only dependent on if the parties request so.
o Note when the request is made: if a party requests arbitration, it should not be later than the pre-trial.
o After the pre-trial, both parties should make the request.
• Condition:
o If the arbitration agreement is null and void, inoperative or incapable of being performed, then the court
should no longer refer the case to arbitration, but instead should hear the case.

LAW 227: Alternative Dispute Resolution • Atty. Marybelle Mariñas gabrielle

Saint Louis University School of Law • Second Semester 2020-2021
Appointing authority
• SEC. 26. Meaning of "Appointing Authority.". - "Appointing Authority" as used in the Model Law shall mean
the person or institution named in the arbitration agreement as the appointing authority; or the regular
arbitration arbitration institution under whose rules the arbitration is agreed to be conducted. Where the
parties have agreed to submit their dispute to institutional arbitration rules, and unless they have agreed
to a different procedure, they shall be deemed to have agreed to procedure under such arbitration rules
for the selection and appointment of arbitrators. In ad hoc arbitration, the default appointment of an
arbitrator shall be made by the National President of the Integrated Bar of the Philippines (IBP) or his duly
authorized representative.
• In every arbitration agreement, parties agree on who will appoint the arbitrator.
o Institutional: In the arbitration agreement, parties agree that they will be bound by the rules
promulgated by the Philippine International Arbitration Commission.
▪ If parties agree to be bound by the Rules of that institution, and the rules of the institution say “the
appointing authority is the institution itself,” then it is the institution that will determine who the
arbitrator should be.
▪ The institution itself becomes the appointing authority.
o If, in the arbitration agreement, the parties agree that a certain person will be the appointing authority,
then that certain named person will determine who the arbitrator will be.
• How many arbitrators? Depends on the parties.
o But the arbitrator should be paid by the parties themselves.
o All contained in the arbitration agreement.
• Ad hoc arbitration
o Ad hoc: necessary that they arbitrate
o In ad hoc arbitration, the default appointment of an arbitrator shall be made by the National President
of the Integrated Bar of the Philippines, or his duly authorized representative.
o Need to rely on the National President being fair, just, and transparent.
▪ What if an arbitrator is not impartial?
▪ Important for the appointing authority to be fair, so the arbitrator will not be prejudicial to either of
the parties.

Interim measures of protection

• Interim measures of protection: while the arbitral tribunal is still being constituted, there may be problems,
and the parties want protection. Or during the proceedings, the parties may want protection.
o Interim: injunction, to prevent a party from doing something to the evidence.
• Who has the power to provide? The court.
o But law also says the arbitral tribunal has the power to issue interim measures.
o But the court and arbitral tribunal do not have concurrent powers.
o The priority who has the authority is always the arbitral tribunal.
o The court will only act if the arbitral tribunal has no power to act yet, or has not yet been constituted,
or is unable to act effectively.

venue
• Where will the arbitration be conducted? Any place the parties agree upon.
o If there is no agreement, the default is in Metro Manila.
o Due to the pandemic, international arbitration can be done online, upon agreement of the parties.
o Needs to be stipulated.
• Problems with arbitration online:
o Power interruptions and Time zones
o Takes longer if need to confer with client
o Difficult to agree
LAW 227: Alternative Dispute Resolution • Atty. Marybelle Mariñas gabrielle
Saint Louis University School of Law • Second Semester 2020-2021
 DOMESTIC ARBITRATION
Rules
• Constitution Industry Arbitration Law
o Construction disputes should always be subject to arbitration.
o If a case involving construction disputes is filed, the court has no choice but to dismiss it.
• If a court issues an interim measure:
o The court can implement it, because it is a court.
o If the arbitral tribunal issues the interim measure, and it is met with refusal, what is the remedy of the
arbitral tribunal to enforce the interim measure?

RECITATION NOTES
Hygienic case
• Omnibus Motion was dismissed: so the case proceeded. Because the affirmative defenses were denied.
• Venue: must be stipulated in writing, made before any action is filed, couched in mandatory terms.
o In other words, the stipulation as to venue must be made in the contract.
o The alleged stipulation as to venue is not valid. It partakes the nature of a contract of adhesion.
▪ Only one party prepared the agreement, only benefits one party, only agreed to by one party.
o Must be in writing and subscribed by the parties.
• On Motion to Dismiss:
o Previously, the grounds for a Motion to Dismiss can be found in Rule 19 of the Rules on Civil Procedure.
▪ Under the Revision to the Rules, there is no more Rule 16 on Motion to Dismiss.
▪ Cannot file a Motion to Dismiss unless the ground is lack of jurisdiction over the subject matter.
o Remedy: to place the “failure to comply with a condition precedent” or the “improper venue” as an
affirmative defense in the answer.
▪ Negative defense: denial, “no it did not happen that way”
▪ Affirmative defense: hypothetical admission, but with a justification that the party is still not liable.
o Reason for the change: if a motion to dismiss is denied, the case will continue
▪ Doing away with it and requiring grounds for motion to dismiss as an affirmative defense in the
answer will avoid delay.

Arbitral awards
• Arbitral award issued by a foreign body is enforced differently that a foreign judgement.
o Both undergo judicial processes.
o Arbitral awards need confirmation by the regional Trial Court.
• Foreign Judgments: file an action to enforce a foreign judgment.
o It becomes an ordinary civil action.
o Need to prove the following:
a) That the foreign court has jurisdiction over the case;
b) That there was due process – parties were notified and given the opportunity to present their
arguments;
c) That there was no fraud.

Non-convention state awards

• How are they confirmed?
o There are separate rules promulgated by the Supreme Court
o But the court can opt to treat it as if it is a convention State award.

Office of adr
• Main function: ensure that ADR laws are fully implemented.
o They do not conduct the arbitration and mediation themselves
LAW 227: Alternative Dispute Resolution • Atty. Marybelle Mariñas gabrielle
Saint Louis University School of Law • Second Semester 2020-2021
 CHAPTER 2
THE OFFICE FOR ALTERNATIVE DISPUTE RESOLUTION

RULE 1- Office for Alternative Dispute Resolution (OADR)

Article 2.1. Establishment of the Office for Alternative Dispute Resolution. There is hereby established the
OADR as an agency attached to the Department of Justice. It shall have a Secretariat and shall be headed
by an Executive Director, who shall be appointed by the President of the Philippines, taking into
consideration the recommendation of the Secretary of Justice.

Article 2.2. Powers of the OADR. The OADR shall have the following powers;

(a) To act as appointing authority of mediators and arbitrators when the parties agree in writing that
it shall be empowered to do so;

(b) To conduct seminars, symposia, conferences and other public fora and publish proceedings of
said activities and relevant materials/information that would promote, develop and expand the use
of ADR;

(c) To establish an ADR library or resource center where ADR laws, rules and regulation,
jurisprudence, books, articles and other information about ADR in the Philippines and elsewhere
may be stored and accessed;

(d) To establish training programs for ADR providers/practitioners, both in the public and private
sectors; and to undertake periodic and continuing training programs for arbitration and mediation
and charge fees on participants. It may do so in conjunction with or in cooperation with the IBP,
private ADR organizations, and local and foreign government offices and agencies and international
organizations;

(e) To certify those who have successfully completed the regular professional training programs
provided by the OADR;

(f) To charge for services rendered such as, among others, for training and certifications of ADR
providers;

(g) To accept donations, grants and other assistance from local and foreign sources; and

(h) To exercise such other powers as may be necessary and proper to carry into effect the provisions
of the ADR Act.

Article 2.3. Functions of the OADR. The OADR shall have the following functions;

(a) To promote, develop and expand the use of ADR in the private and public sectors through
information, education and communication;

(b) To monitor, study and evaluate the use of ADR by the private and public sectors for purposes
of, among others, policy formulation;

(c) To recommend to Congress needful statutory changes to develop, strengthen and improve ADR
practices in accordance with international professional standards;

LAW 227: Alternative Dispute Resolution • Atty. Marybelle Mariñas gabrielle

Saint Louis University School of Law • Second Semester 2020-2021
 (d) To make studies on and provide linkages for the development, implementation, monitoring and
evaluation of government and private ADR programs and secure information about their respective
administrative rules/procedures, problems encountered and how they were resolved;

(e) To compile and publish a list or roster of ADR providers/practitioners, who have undergone
training by the OADR, or by such training providers/institutions recognized or certified by the OADR
as performing functions in any ADR system. The list or roster shall include the addresses, contact
numbers, e-mail addresses, ADR service/s rendered (e.g. arbitration, mediation) and experience in
ADR of the ADR providers/practitioners;

(f) To compile a list or roster of foreign or international ADR providers/practitioners. The list or roster
shall include the addresses, contact numbers, e-mail addresses, ADR service/s rendered (e.g.
arbitration, mediation) and experience in ADR of the ADR providers/practitioners; and

(g) To perform such other functions as may be assigned to it.

Article 2.4. Divisions of the OADR. The OADR shall have the following staff and service divisions, among
others:

(a) Secretariat – shall provide necessary support and discharge such other functions and duties as
may be directed by the Executive Director.

LAW 227: Alternative Dispute Resolution • Atty. Marybelle Mariñas gabrielle

Saint Louis University School of Law • Second Semester 2020-2021