Case Management

Conference in Arbitration
Ricardo Ma. P.G. Ongkiko
Ricardo Ma. P.G. Ongkiko
rmpgongkiko@syciplaw.com

Admitted to the Philippine Bar (1989)

University of Michigan (LL.M.) (1992)
University of the Philippines (A.B., magna cum laude; LL.B., Class Salutatorian, cum laude) (1984/1988)

President, Philippine Institute of Construction Arbitrators and Mediators, Inc.

President-Emeritus, Philippine Institute of Arbitrators (PIArb)
Assistant Corporate Secretary and Trustee, Philippine Dispute Resolution Center, Inc. (PDRCI)
Fellow, The Chartered Institute of Arbitrators (CIArb), East Asia Branch

Accredited Arbitrator – Singapore International Arbitration Centre; Hong Kong International Arbitration Centre; Asian
International Arbitration Centre; Korean Commercial Arbitration Board; Vienna International Arbitration Center; Dubai
International Arbitration Centre; National Arbitration and Mediation (NY); Philippine Construction Industry Arbitration
Commission; PDRCI; PIArb; Intellectual Property of the Philippines; Wholesale Electricity Spot Market; and Philippine
International Center for Conflict Resolution
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Situation:

• Request for Arbitration/Answer to Request have been filed

• Sole arbitrator has been appointed/ Arbitral tribunal has been constituted
• Presentation of evidence has not commenced
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References:

• Applicable Arbitration Institution Rules

• ADR Act/RA 876/UNCITRAL Model Law
• Implementing Rules and Regulations of the Alternative Dispute Resolution Act of
2004 (ADR Act IRR)
• UNCITRAL Notes on Organizing Arbitral Proceedings – finalized by UN
Commission on International Trade Law at its 29th Session (New York, 1996)
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Guiding Principles

• The parties shall be treated with EQUALITY and each party shall be given a FULL
OPPORTUNITY of presenting his/her case.
• The parties are FREE TO AGREE on the PROCEDUREto be followed by the
tribunal in conducting the proceedings.
• Failing such agreement, the tribunal may conduct the arbitration in such manner
as it considers APPROPRIATE.
By majority; or
By Presiding Arbitrator, if so authorized by parties or all members of the Tribunal.
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Preliminary Matters

• Introduction of Tribunal members

• Purpose of the Preliminary Conference/Case Management Conference
• To see original arbitration agreement and notice of arbitration
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Representation (ADR Act IRR, Articles 4.40, 5.23(f) and 5.41)

• A party may, during the proceedings, REPRESENT HIMSELF or BE

REPRESENTED or assisted by a representative.
• A party may be represented by ANY PERSON of his choice: 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, or any other
QUASI-JUDICIAL body whether or not such appearance is in relation to the
arbitration in which he appears.
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Language of proceedings - need for translation of documents; need for
interpretation of oral presentations; costs (ADR Act IRR, Articles 4.22 and 5.21)

• The parties are FREE TO AGREE on the language or languages to be used in the
arbitral proceedings.
• Failing such agreement, the language to be used (in all hearings, written
statements, orders or other communication) shall be ENGLISH or FILIPINO (for
international arbitration, English).
• The tribunal may order that any documentary evidence shall be accompanied by
a TRANSLATION into the language or languages agreed upon by the parties.
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Language of proceedings - need for translation of documents; need for
interpretation of oral presentations; costs (UNCITRAL Notes, Matter No. 2)

• Many rules and laws on arbitral procedure empower the TRIBUNAL TO

DETERMINE the language or languages to be used in the proceedings, if the
parties have not reached an agreement thereon.
• The tribunal may consider ordering that annexed documents should be
accompanied by a TRANSLATION into the language of the proceedings.
• If interpretation will be necessary during oral hearings, it is advisable to consider
whether the INTERPRETATION will be SIMULTANEOUS or CONSECUTIVE and
whether the arrangements should be the responsibility of a party or the tribunal.
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Venue or place or places where arbitration proceeding may be conducted (ADR Act
IRR, Articles 4.20 and 5.19)

• The parties are FREE TO AGREE on the place of arbitration.

• Failing such agreement, the place of arbitration shall be in METRO MANILA unless
the tribunal, having regard to the circumstances of the case, including the
convenience of the parties, shall decide on a different place of arbitration.
• The tribunal may, unless otherwise agreed by the parties, meet at ANY PLACE it
considers APPROPRIATE for consultation among its members, for hearing witnesses,
experts or the parties, or for inspection of goods, other property or documents.
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Venue or place or places where arbitration proceeding may be conducted
(UNCITRAL Notes, Matter No. 3)

Factors –
suitability of the LAW ON ARBITRAL PROCEDURE;
whether there is multilateral/bilateral TREATY ON ENFORCEMENT of arbitral
awards between place of arbitration and state where award may be enforced;
CONVENIENCE of parties/arbitrators and TRAVEL DISTANCES;
availability and cost of SUPPORT SERVICES needed;
location of SUBJECT MATTER of dispute and proximity of EVIDENCE
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Set of arbitration rules – if no agreement of parties (ADR Act IRR, Articles 4.19 and 5.18)

The parties are FREE TO AGREE on the procedure to be followed by the tribunal in the
conduct of its proceedings.
Failing such agreement, the tribunal may, subject to the provision of the ADR Act, conduct
the arbitration in such manner as it considers APPROPRIATE. (For international arbitration,
unless the tribunal considers it inappropriate, the UNCITRAL Arbitration Rules shall apply,
but considering the appointing authority in lieu of the Secretary General of the Permanent
Court of Arbitration.)
The power conferred upon the tribunal includes the power to determine admissibility,
relevance, materiality and weight of EVIDENCE.
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Set of arbitration rules – if no agreement of parties (UNCITRAL Notes, Matter No. 1)

The UNCITRAL Arbitration Rules may be used either WITH OR WITHOUT

MODIFICATION as the parties might wish to agree upon. In the alternative, the parties
might wish to adopt the rules of an ARBITRAL INSTITUTION.
However, caution is advised as consideration of a set of arbitration rules might delay
the proceedings or give rise to unnecessary controversy.
The agreement on arbitration rules is NOT A NECESSITY. If parties do not agree on
set of arbitration rules, the tribunal has the power to continue the proceedings and
determine how the case will be conducted.
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Definition of issues submitted to tribunal and summary of claims and counterclaims
– Terms of Reference (ADR Act IRR, Article 5.23(i))

• issues raised during the arbitration proceeding relating to

A. the JURISDICTION of the tribunal over one or more of the claims or counter-
claims, or
B. the ARBITRABILITY of a particular claim or counter-claim, shall be resolved
by the tribunal as THRESHHOLD ISSUES, if the parties so REQUEST, unless
they are INTERTWINED with factual issues that they cannot be resolved ahead
of the hearing on the merits of the disputes.
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Definition of issues submitted to tribunal and summary of claims and
counterclaims – Terms of Reference (UNCITRAL Notes, Matter No. 11)

• This might help to concentrate on the essential matters, to REDUCE the number
of POINTS AT ISSUE by agreement of the parties, and to select the best and most
economical process for resolving the dispute.
• In which ORDER should points at issue be decided – PRELIMINARY and
SUBSTANTIVE issues, LIABILITY and DAMAGE issues, when involve breaches of
VARIOUS CONTRACTS/liabilities from VARIOUS EVENTS.
• Appropriateness of PARTIAL, INTERLOCUTORY or INTERIM awards.
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Periods for communication of statement of claims/answer to claims/ answer to
counterclaims, and form and contents of such pleadings (ADR Act IRR, Articles 4.23
and 5.22)

• Within the period of time agreed by the parties or determined by the tribunal, the
claimant shall state the FACTS supporting his/her CLAIM, the points at issue and the
relief or remedy sought, and the respondent shall state his/her DEFENSE in respect of
these particulars, unless the parties may have otherwise agreed as to the required
elements of such statements.
• The parties may submit with their statements all documents they consider to be
relevant or may add a reference to the documents or other EVIDENCE they will submit.
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Periods for communication of statement of claims/answer to claims/answer to
counterclaims; and form and contents of such pleadings (UNCITRAL Notes, Matter Nos. 9
and 10)

• It is advisable that the tribunal set TIME-LIMITS for written submissions. In enforcing the
time-limits, the tribunal may wish, on the one hand, to make sure that the case is not
unduly protracted and, on the other hand, to reserve a degree of discretion and allow
late submissions if appropriate under the circumstances.
• CONSECUTIVE or SIMULTANEOUS submissions – may depend on the type of issues to
be commented upon and the time in which views should be clarified.
• Practical details – METHOD of submissions, number of COPIES, system of NUMBERING
documents and items of evidence, method of MARKING, form of references to
documents, paragraph numbering in written submissions, location of TRANSLATIONS
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Delivery of certain types of communications - if made by electronic or similar
means, require further confirmation in form of hard copy delivered personally or
by registered post (ADR Act IRR, Article 5.2)

• Except as parties may agree, written communication shall be delivered to

addressee PERSONALLY, by REGISTERED MAIL, or by COURIER service.
• Except as the parties may agree or the arbitrator may direct otherwise, a written
communication may be delivered by ELECTRONIC MAIL or FACSIMILE
transmission or by such other means that will provide a record of the sending and
receipt thereof at the recipient’s mailbox (electronic inbox).
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Delivery of certain types of communications - if made by electronic or similar
means, require further confirmation in form of hard copy delivered personally or
by registered post (UNCITRAL Notes, Matter Nos. 7 and 8)

• Routing of written communications among parties and arbitrators – THROUGH

arbitrators/arbitral INSTITUTION for forwarding to parties; SIMULTANEOUSLY to
arbitrators and parties
• Other electronic means – depends on APTITUDE of persons involved and
AVAILABILITY of equipment/computer programs - either IN ADDITION to paper-
based form, or ONLY in ELECTRONIC form – if in addition, decide which one is
controlling, and which constitutes submission for time limits; if electronic form –
computer programs to be used; if to be sent by email or in flash drive, etc.
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Manner by which evidence is offered - oral hearing, or submission of sworn written
statements - cross-examination and further examination of witnesses (ADR Act IRR,
Article 4.24)

• Subject to parties contrary agreement, the tribunal shall decide whether to hold
HEARINGS for the presentation of evidence or for oral argument, or whether
proceedings shall be conducted on the basis of DOCUMENTS and other materials.
Unless parties agreed that no hearings shall be held, the tribunal shall HOLD such
HEARINGS at an appropriate stage of the proceedings, if so REQUESTED by a party.
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Manner by which evidence is offered - oral hearing, or submission of sworn written
statements - cross-examination and further examination of witnesses (ADR Act IRR,
Article 5.23)

• The tribunal shall, in consultation with the parties, fix the DATES and TIME of hearing,
regard being given to desirability of conducting and concluding an arbitration without
undue delay.
• The parties may submit with their statements all documents they consider to be relevant
or may add a reference to the documents or other evidence they will submit.
• The parties and the tribunal are to agree on the MANNER by which evidence may be
OFFERED if an oral hearing is required, the submission of sworn written STATEMENTS IN
LIEU of oral testimony, the CROSS-EXAMINATION and further examination of witnesses.
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Manner by which evidence is offered - oral hearing, or submission of sworn written
statements - cross-examination and further examination of witnesses (UNCITRAL Notes,
Matter No. 17)

• Whether to HOLD hearings –

• Factors – if QUICKER/EASIER TO CLARIFY points at issue pursuant to direct
confrontation of arguments than on basis of correspondence; COST of holding hearings;
DELAY caused by need to find acceptable dates for hearings
• Whether ONE PERIOD of hearings, or SEPARATE PERIODS of hearings – if more than few
days of hearings are needed, or if issues to be decided are separated
• Factors – travel COSTS, fading MEMORY, change of party representatives; DIFFICULTY
TO SCHEDULE longer hearings; tailor hearings to development of the case; PERIOD
TO ANALYZE records, and NEGOTIATIONS between parties to narrow issues
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Manner by which evidence is offered - oral hearing, or submission of sworn written statements
- cross-examination and further examination of witnesses (UNCITRAL Notes, Matter No. 17)

• SETTING DATES for hearings - typically firm/definitive dates, but may be “target” dates –
when not all information necessary to schedule hearings is yet available – but will either be
confirmed or rescheduled within a reasonably short period
• Whether LIMIT aggregate amount of TIME each party will have for oral arguments and
questioning witnesses – “CHESS CLOCK” – allow parties to plan presentation of various items
of evidence/argument, reduce likelihood of running out of time, and avoid one party unfairly
using up disproportionate amount of time.
• ORDER in which parties will present arguments/evidence - opening or closing statements and
level of detail, sequence in which parties present opening statements/arguments/witnesses/
other evidence.
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Documentary evidence (UNCITRAL Notes, Matter No. 13)

• Joint submission of single set of documentary evidence

• The parties may consider submitting jointly a SINGLE SET of documentary
evidence whose authenticity is not disputed.
• The purpose would be to avoid duplicate submissions and unnecessary
discussions concerning the authenticity of documents, without prejudicing the
position of the parties concerning the content of the documents.
• A convenient ARRANGEMENT of documents in the set may be according to
CHRONOLOGICAL order or SUBJECT-MATTER.
• It is useful to keep TABLE OF DOCUMENTS by their short headings and dates.
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Documentary evidence (UNCITRAL Notes, Matter No. 13)

• Presentation of voluminous and complicated documentary evidence through

summaries, tabulations, charts, extracts or samples
• When documentary evidence is voluminous and complicated, it may save time
and costs if such evidence is presented by a REPORT of a PERSON COMPETENT
in the relevant field, e.g., public accountant or consulting engineer—in form of
SUMMARIES, tabulations, charts, extracts or samples.

• Such presentation of evidence should be combined with arrangements that give

the interested party the OPPORTUNITY TO REVIEW the underlying DATA and the
METHODOLOGY of preparing the report.
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Testimonial Evidence
• Advance notice about party’s witnesses
(UNCITRAL Notes, Matter No. 15(a))
• Written witnesses’ statements
(UNCITRAL Notes, Matter No. 15(a))
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Testimonial Evidence

• Order in which witnesses will be called (UNCITRAL Notes, Matter No. 15(c))

• When SEVERAL witnesses are to be heard and LONGER TESTIMONY is expected,

it is likely to reduce costs if the ORDER in which they will be called is known in
ADVANCE and their PRESENCE can be SCHEDULED accordingly.
• Each PARTY might be invited to SUGGEST the order in which it intends to
present the witnesses, while it would be up to the TRIBUNAL to APPROVE the
scheduling and to make departures from it.
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Testimonial Evidence

Manner of taking oral evidence of witnesses (UNCITRAL Notes, Matter No. 15(b)(i))
ORDER in which questions will be asked, and MANNER in which hearing of witnesses will
be conducted

Possibilities
• witness is first questioned by the tribunal, whereupon questions are asked by the
parties, first by the party who called the witness; or
• witness to be questioned by the party presenting the witness and then by the other
party or parties, while the tribunal might pose questions during the questioning or
after the parties on points that in the tribunal’s view have not been sufficiently clarified.
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Issuance of subpoena/subpoena duces tecum by tribunal to compel production of
evidence - if either party shall or is likely to request (ADR Act IRR, Articles 4.27
and 5.23(m),(v))

• The tribunal shall have the power to require ANY PERSON to attend a hearing as
a witness. The tribunal shall have the power to subpoena WITNESSES and
DOCUMENTS when relevancy and materiality of the testimony has been
demonstrated.
• The tribunal may require the PARTIES to produce such other documents or
provide such information as in its judgment would be necessary for it to render a
complete, fair and impartial award.
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Issuance of subpoena/subpoena duces tecum by tribunal to compel production of
evidence - if either party shall or is likely to request (UNCITRAL Notes, Matter No. 13)

• When agreed arbitration rules do not provide specific conditions for requiring a
party to produce evidence, it is useful to clarify to parties the manner in which it
intends to proceed.
• The tribunal may wish to establish TIME-LIMITS for production of documents. The
parties might be reminded that, if the requested party DULY INVITED to produce
documentary evidence FAILS to do so within the established period of time, without
showing sufficient cause for such failure, the tribunal is free to DRAW its
CONCLUSIONS from the failure and may make the award on the evidence before it.
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Manner of recording proceedings (ADR Act IRR, Article 5.23(k))
• The tribunal shall arrange for TRANSCRIPTION of the recorded testimony of each
witness and require PARTIES to SHARE the cost of the recording and
transcription of the testimony of each witness.
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Manner of recording proceedings (UNCITRAL Notes, Matter No. 17)

OTHER METHODS of preparing a record of oral statements and testimony during hearings
• personal NOTES by arbitrators;
• presiding arbitrator DICTATING to a typist a SUMMARY of oral statements and
testimony;
• preparation of a SUMMARY record by TRIBUNAL SECRETARY;
• professional STENOGRAPHERS preparing verbatim transcripts, often within the next
day or similarly short time period;
• COMBINATION of WRITTEN record and TAPE-RECORDING, to enable reference to
tape in case of disagreement over written record.
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Manner by which expert testimony will be received (ADR Act IRR, Articles 4.26 and 5.26)

• Possibility of site or ocular inspection, purpose of such inspection, the date, place and
time of inspection and the manner of conducting it, and sharing and deposit of any
associated fees and expenses
• (UNCITRAL Notes, Matter No. 14)
• Discovery proceedings
• Possibility of either party applying for interim relief either with tribunal or with court,
and nature of relief
• (ADR Act IRR, Articles 4.17 and 5.16)
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Amount to be paid tribunal as fees and the associated costs, charges and expenses,
and the manner and timing of such payments (ADR Act IRR, Article 4.46)

• The tribunal, on its establishment, may request each party to DEPOSIT an EQUAL
amount as an ADVANCE for arbitration costs –arbitrators’ fees, travel and other
expenses of arbitrators, costs of expert advice and other assistance required by
tribunal.
• During the course of proceedings, the tribunal may request SUPPLEMENTARY
DEPOSITS from parties.
• If appointing authority consents, the tribunal shall fix deposits only after
CONSULTATION with APPOINTING AUTHORITY which may make any comments to
the tribunal which it deems appropriate concerning the amount of such deposits.
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Amount to be paid tribunal as fees and the associated costs, charges and
expenses, and the manner and timing of such payments (ADR Act IRR, Article
5.46)

• The FEES of the arbitrators shall be AGREED upon by the parties and the
arbitrator/s in writing PRIOR to the arbitration.
• In DEFAULT of agreement of the parties as to the amount and manner of
payment of arbitrator’s fees, the arbitrator’s fees shall be determined in
accordance with the applicable INTERNAL RULES of the regular arbitration
INSTITUTION under whose rules the arbitration is conducted; or in ad hoc
arbitration, the SCHEDULE OF FEES approved by the IBP, if any, or in default
thereof, the Schedule of Fees that may be approved by the OADR.
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Amount to be paid tribunal as fees and the associated costs, charges and
expenses, and the manner and timing of such payments (ADR Act IRR, Article
5.46)

• In addition to arbitrator’s fees, the parties shall be responsible for the payment of
the ADMINISTRATIVE fees of an arbitration institution administering an
arbitration and COST of arbitration.
• The latter shall include, as appropriate, the fees of an EXPERT appointed by the
tribunal, the expenses for conducting a SITE INSPECTION, the use of a ROOM
where arbitration proceedings shall be or have been conducted, and expenses for
the RECORDING and transcription of the arbitration proceedings.
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Amount to be paid tribunal as fees and the associated costs, charges and expenses,
and the manner and timing of such payments (UNCITRAL Notes, Matter No. 5)

• ARBITRATION INSTITUTION sets, on basis of estimate of costs of proceedings, the

AMOUNT to be DEPOSITED as an advance for the costs of arbitration. It manages
and accounts for the deposited money.
• In other cases, it is customary for TRIBUNAL to make such estimate and request a
deposit, which includes travel and other expenses by arbitrators, expenditures for
administrative assistance, costs of expert advice required, and fees of arbitrators.
• Need to clarify WHO makes the deposit, type and location of ACCOUNT
where money will be kept, and how deposits will be MANAGED.
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Administrative services needed for tribunal to carry out its functions (UNCITRAL Notes,
Matter No. 4)
• Usually provided by an arbitration institution; if none, usually arranged by the tribunal or
presiding arbitrator, but may leave some arrangements to parties, or to one of them subject
to agreement of the other party
• Hearing rooms
• Tribunal secretaries – carries out tasks under direction of the tribunal; not controversial
if tasks are purely organizational; difference in views if tasks include legal research and
other professional assistance to the tribunal (collecting case law/published
commentaries, preparing summaries, preparing drafts of procedural decisions/parts of
award) – even if not perform any decision-making function of the tribunal
• Official Transcribers
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Confidentiality of information relating to the arbitration (ADR Act IRR, Articles 4.41 and 5.42)

• The arbitration proceedings, including the records, evidence and the arbitral award and other
confidential information, shall be considered privileged and confidential and shall not be
published except- (1) with the CONSENT of the parties; or (2) for the LIMITED PURPOSE of
disclosing to the court relevant documents in cases where resort to the court is allowed:
(UNCITRAL Notes, Matter No. 6)
• An agreement on confidentiality might cover, for example, one or more of the following matters:
the material or INFORMATION that is to be kept confidential; MEASURES for maintaining
confidentiality of such information and hearings; whether any SPECIAL PROCEDURES should be
employed for maintaining the confidentiality of information transmitted by electronic means;
CIRCUMSTANCES in which confidential information may be DISCLOSED in part or in whole.
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Other relevant matters as parties and tribunal may consider necessary for a
speedy and efficient arbitration (ADR Act IRR, Article 5.23)
• The parties and the tribunal are to agree on their relevant matters as the
parties and the tribunal may consider necessary to provide for a SPEEDY and
EFFICIENT arbitration of the dispute.
• In DEFAULT of agreement, the TRIBUNAL shall have the DISCRETION and
authority to make the decision, although in making a decision, regard shall be
given to the views expressed by both parties.

Referral to other modes of ADR