13th PDRCI COMMERCIAL ARBITRATION TRAINING SEMINAR

"The Law and Practice of Commercial Arbitration"

Fort Bonifacio, Taguig City

Atty. Andres R. Viacrusis J.D.

Question 1& 2 were answered as instructed in the questionare;

Question 3:

As to the question of forum, it would be the proper organ or body of the state

which is the seat of arbitration which is in Singapore; it is however submitted that I

may not be able to represent my client in the said application as I am not a lawyer in

Singapore.

Question 4:

(a) It is respectfully submitted, that the proper recourse for my client in the

given situation is to apply for the remedy of Recognition and Enforcement as

provided under UN Convention on the Recognition and Enforcement of Foreign

Arbitral Rewards, and the action should be applied in Malaysia.

As stated under the UN Convention on the Recognition and Enforcement of

Foreign Arbitral Rewards, it provides under Article 1 that " This Convention shall

apply to the recognition and enforcement of arbitral awards made in the territory of a

state other than the state where the recognition and enforcement of such awards are

sought... " and also provided under Article 4, that " 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... "

Here, the Arbitral award must be presented in Malaysia because the properties

sought to be used to satisfy the claim is located there, also it is important to file for the
recognition and enforcement of the arbitral award, this because of the fact that the

tribunal who awarded the claim has no enforcement power in the said territory, hence

the aid of the local courts is necessary for the enforcement of the reward, thus the

remedy of Recognition and Enforcement becomes indispensable in the given

situation.

(b) Yes, My answer will be the same.

As stated under the UN Convention on the Recognition and Enforcement of Foreign

Arbitral Rewards, it provides under Article 1 that " This Convention shall apply to the

recognition and enforcement of arbitral awards made in the territory of a state other

than the state where the recognition and enforcement of such awards are sought... "

Here, the same requirements and legal basis would be applicable because in

this given situation, the arbitral award is still sought to be applied in a territory outside

of the seat of arbitration, hence my answer would be the same.

Question 5:

The Claimant must apply for the Remedy of Confirmation.

Under Section 23 of R.A. no. 876, it provides that "xxx Any Party to the

controversy which was arbitrated may apply to the court having jurisdiction xxx, for

an order confirming the award."

Here, since in Ad Hoc arbitrations, in case of failure of the parties to decide

the arbitral rules or in case of disagreement in the decided arbitral rules, the law to be

followed would be the law of the forum, and since the arbitration was held in the

Philippines, hence R.A. no. 876 shall apply.

Question 6:

My Client must apply for Recognition and Confirmation as provided under

the UNCITRAL rules.

Question 7:

The Client must file

Question 8:

(a) file before the CIAC an action for the Correction of Final award within 15

days from the receipt of the copy of the Final Award, this is as provided under Rule

17.1 of the CIAC rules.

(b) This may not be arbitrated because it is monitored and regulated by the law

of the forum, which is one of the items which are not subject to arbitration.

(c) This may not be arbitrated because it is monitored and regulated by the law

of the forum, which is one of the items which are not subject to arbitration.

Question 9:

No, the petition will not prosper.

Under Article 5 of the UN Convention on the Recognition and Enforcement of

Foreign Arbitral Rewards, it provides that Recognition and enforcement of the award

may be refused when " (a) the parties to the agreement referred to in article 2 were,

under the law applicable to them, under some incapacity..." and since the corporation

has no license to transact in the Philippines, then he is under some incapacity because

he has no capacity to sue.

Question 10

Yes, the complaint will prosper.

Here, even if there is an incapacity on the part of the foreign corporation, the

respondent's act of entering into a contract with an incapacitated party puts him under

the principle of Estoppel, hence he is bared by law from raising questions the

qualification of the foreign corporation to enter under such an agreement, thus

capacitating the foreign party to file the said action before the courts.
Question 11

In problem number 09, the foreign corporation has no right to compel

arbitration because of the fact that the remedy available in his case may not be

pursued by reason of his incapacity to file an action, whereas, in problem number 10,

even if the incapacity exist, the respondents act in entering into a contract with the

foreign corporation puts him under the principle of Estoppel, hence, the action may

prosper.

Question 12

No, As expressly provided under Section 44 of R.A. no. 9285, it provides that:

" A foreign arbitral reward when confirmed by a court of a foreign country, shall be

recognized and enforced as a foreign arbitral award and not a judgment of a foreign

court."

Question 13

(a) No, the fact that it is merely an interim order, and since only foreign

awards that are in the form of final orders may be acted upon by the courts, hence it is

not enforceable by court action in the Philippines.

(b) It depends, if the order of the emergency arbitrator is in the nature of a

final order, then the order may be enforced here in the Philippines, however, if the

order of the emergency arbitrator is merely an interim order, hence it may not be

enforced, based on the rule abovementioned.

Question 14

(a) No, this is as expressly provided under article 34 (3) of the Model Law, as

it provides that: " (3) An application for setting aside may not be made after three

months have elapsed from the date on which the party making that application had

received he award..."
 (b) The rule provided for under the Special ADR rules promulgated by the

Supreme Court provides that: " Failure to file a petition to set aside shall preclude a

party from raising grounds to resist enforcement of award."

(c) The rule provided for under the Special ADR rules promulgated by the

Supreme Court provides that the remedy in the given situation would be to initiate the

proper action of either appeal or petition for certiorari, as provided under the Rules of

Court.