ADR Reviewer - Autea

ALTERNATIVE DISPUTE RESOLUTION (ADR)
Arthur P. Autea
 2004 – Alternative Dispute Resolution Act

OVERVIEW (ADRA)
History of ADR This law is covers both domestic and

international arbitration. It provides that
 1950 – Civil Code international commercial arbitration in the
Philippines shall be governed by the rules on
 1953 – Domestic Arbitration Law (DAR) the law of international commercial arbitration.
This law is merely a law on domestic  2009 – Special ADR Rules (SAR)
arbitration. (Autea)
This covered the gaps found in DAR and
The remedies available to the parties will ADRA.
depend whether the arbitration is domestic or
international. Also, the enforcement of he Concept of ADR
outcome of the arbitration is different. (Autea)
"ALTERNATIVE DISPUTE RESOLUTION System"
 1958 – New York Convention means any process or procedure used to resolve a
dispute or controversy, other than by adjudication
This convention is about the recognition and of a presiding judge of a court or an officer of a
enforcement of foreign arbitration. For government agency, as defined in this Act, in which
contracting parties, they are bound by foreign a neutral third party participates to assist in the
arbitral awards rendered in any of the foreign resolution of issues, which includes arbitration,
states. (Autea) mediation, conciliation, early neutral evaluation,
mini-trial, or any combination thereof. (Sec. 3(a),
 1976 – UNCITRAL Arbitration Rule ADRA)
 1985 – UNCITRAL Model Law (Model Law) Examples of ADR
The Philippines follow the 1985 version of the "ARBITRATION" See Arbitration in General.
Model Law; not its updated version. (Autea)
Arbitration is always consensual. Parties cannot
be forced into arbitration but once a contract is
signed the parties are bound by it because
© APB (Alvaera & Esguerra) DLSU LAW 1

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“obligations arising from contracts have the force of present summaries of their cases and receive a
law between the contracting parties.” However, nonbinding assessment by an experienced, neutral
although the law provides such, this must still be person, with expertise in the subject in the
invoked. (Autea) substance of the dispute. (Sec. 3(n), ADRA)
Also, arbitration is confidential unless there is a "MINI-TRIAL" means a structured dispute

waiver of parties. (Autea) resolution method in which the merits of a case are
argued before a panel comprising senior decision
It must be noted that the award of an arbitrator is makers with or without the presence of a neutral
binding on the parties. (Autea) third person after which the parties seek a
negotiated settlement. (Sec. 3(u), ADRA)
"MEDIATION" means a voluntary process in which Party Autonomy

a mediator, selected by the disputing parties,
facilitates communication and negotiation, and Party autonomy is “the freedom of the party to
assist the parties in reaching a voluntary agreement make their own arrangements to resolve their
regarding a dispute. (Sec. 3(q), ADRA) disputes.” (Sec. 2, ADRA) It is the freedom of the
parties to determine the rules/laws governing the
Unlike arbitration, the resolution of the mediator is mode of resolving their dispute. (Autea)
not binding on the parites. However, there is such a
thing called “mediated settlement agreement” which This is what distinguishes arbitration from
necessarily becomes binding on the parites. conventional litigation. (Autea)
(Autea)
Arbitration vs. Litigation
The term "mediation' shall include conciliation.
(Sec. 7, ADRA) ARBITRATION LITIGATION
private & confidential public
"MEDIATION-ARBITRATION" or Med-Arb is a step parties may select parties cannot agree on
dispute resolution process involving both mediation arbitrator, unless the the presiding officer
and arbitration. (Sec. 3(t), ADRA) parties fail to agree because the judge is
raffled
"EARLY NEUTRAL EVALUATION" means an What is important is that
ADR process wherein parties and their lawyers are the parties were given
brought together early in a pre-trial phase to the opportunity to agree
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on the arbitrator. their official duties, unless there is a clear showing

(Autea) of bad faith, malice or gross negligence.] (Sec. 5,
parties can select the Philippine law governs ADRA; Sec. 38(1), Administrative Code)
governing law that will unless there a choice of
determine their law stipulation in the An arbitrator has the same status as a RTC Judge.
substantive rights contract (Autea)
procedure depends on Rule of Court applies
the agreement Flowchart of Arbitration
formal offer of evidenceformal offer of evidence
is generally submitted is only submitted at the Arbitration Agreement
at the beginning end
venue depends on the as a rule, Rules of
agreement Court determine the Dispute
venue but it may also
depend on the Commencement of Arbitration
agreement
submission to the submission to the
Selection of Arbitrators
process is consensual process is not
consensual
Claimant v. Respondent Plaintiff v. Defendant / Conduct of Arbitration Proceedigs
Petitioner v.
Respondent
Preliminary Conference
Arbitrator Judge
Stenographer Court Reporter
Award / Final Award / Judgment / Final Submission of Statements
Interim Award Judgment / Interlocutory
Order Presentation of Witnesses
Nature of Liability of ADR Providers and
Practitioners Submission of Memorandum
The ADR providers and practitioners [shall not be Arbitral Award

civilly liable for acts done in the performance of

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international, Model have their own rules

Ways to be Bound to Arbtration Law will apply. that the parties can
adopt.
1) sign a document with an arbitration clause
2) join an organization with its own rules saying

that any dispute is to be resolved through
arbitration
3) step into the shoes of a predecessor who was

bound to arbitration
4) agree to be a surety
Ad Hoc vs. Institutional Arbitration
AD HOC INSTITUTIONAL
Parties will stipulate the Parties will submit the
rules governing the dispute to an institution
arbitration proceedings. which has
predetermined rules
governing the
arbitration proceedings.
Arbitration is deemed Arbitration is deemed
commenced upon commenced upon
service of demand for notice of the institution
arbitration. to the respondent of the
claimant’s request for
arbitration with the
institution.
For domestic In default of the
arbitration, the DAL and agreement of the
SAR will apply; for parties, institutions

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resolve a dispute by rendering an award. (Sec.

ARBITRATION AGREEMENT IS A CONTRACT 3(d), ADRA)
Arbitration Agreement vs. Submission The elements of arbitration, as enumerated by Sec.

Agreement 3(a) of the ADRA, are:
ARBITRATION SUBMISSION 1) one or more arbitrators;

AGREEMENT AGREEMENT 2) appointed in accordance with:
An agreement that An agreement to submit a) the agreement of the parties; or
determines the rights, the dispute to b) rules promulgated pursuant to ADRA; and
obligations, procedure arbitration. 3) resolution of dispute by rendering an award.
and rules. It may be in a (Autea)
separate agreement or
may be a clause in a “ARBITRATION AGREEMENT” is an agreement
contract. by the parties to submit to arbitration all or certain
A party may invoke this The parties may enter disputes which have arisen or which may arise
at any time before pre- into this at any time, between them in respect of a defined legal
trial, after which, both even after pre-trial. relationship, whether contractual or not. An
parties must invoke it. arbitration agreement may be in the form or an
This comes before the The dispute comes arbitration clause in a contract or in the form of a
dispute. before this agreement separate agreement. (Art. 7(1), Model Law)
to arbitrate.
This definition combines the concept of arbitration
The distinction lies in the time when the dispute agreement and submission agreement. (Autea)
arises or when the agreement was made. (Autea)
Obligations arising from contracts have the force of
Arbitration in General law between the contracting parties and should be
complied with in good faith. (Art. 1159, CC)
"ARBITRATION" means a voluntary dispute
resolution process in which one or more arbitrators, The principle in this provision is known as the
appointed in accordance with the agreement of the principle of autonomy of will. It dictates that the
parties, or rules promulgated pursuant to this Act, parties can stipulate anything, provided that the
terms of the contract are not contrary to law, public
policy, or pubic order. (Autea)

Arthur P. Autea
Maria Luisa Park vs. Almendras (2009) The following matter cannot be the subject of
commercial arbitration:
The agreement to submit all disputes to arbitration
is a contract. As such, the arbitration agreement 1) labor disputes;
binds the parties thereto, as well as their assigns 2) civil status of persons;
and heirs. 3) validity of marriage;
4) any ground for legal separation;
Mere exchange of correspondence will not suffice 5) jurisdiction of courts;
much less satisfy the requirement of arbitration. 6) future legitime;
Arbitration being the mode of settlement between 7) criminal liability; and
the parties expressly provided for in their by-laws, 8) those which by law cannot be compromised.
the same should be respected. Unless an (Sec. 6, ADRA)
arbitration agreement is such as absolutely to close
the doors of the courts against the parties, the Rescission/Resolution
courts should look with favor upon such amicable
arrangements. The injured party may choose between the
fulfillment and the rescission of the obligation, with
Commentary: In this case, neither of the parties the payment of damages in either case. He may
invoked the arbitration clause. As mentioned also seek rescission, even after he has chosen
earlier, the arbitration clause must be invoked fulfillment, if the latter should become impossible.
before the parties are bound to go through the (Art. 1191, CC)
arbitration process. More importantly, the arbitration
clause should not be invoked to dismiss the case; Korea Technologies Co., Ltd. v. Lerma (2008)
instead, it should be invoked to go into the
arbitration process. The proper remedy in this case Being bound to the contract of arbitration, a party
should have been a motion for suspension of the may not unilaterally rescind or terminate the
case. (Autea) contract for whatever cause without first resorting to
arbitration.
It must be noted that the fact that a judgment has
been rendered is not a bar to proceed to arbitration. Commentary: Pursuant to this case, if a contract
(Autea) contains an arbitration clause, a party can only
rescind the contract through the arbitration process.
Exclusions from ADR On the other hand, if the contract does not contain

Arthur P. Autea
an arbitration clause, a party can unilaterally

rescind the contract under Article 1191. (Autea) DISTINCTION BETWEEN DOMESTIC AND
INTERNATIONAL/FOREIGN ARBITRATION
DOMESTIC FOREIGN
Arbitration where the Arbitration where the
agreed place of arbitration agreed place of arbitration
is WITHIN the Philippines. is OUTSIDE the Philippines.
(Rule 1.11, SAR)
Award may be vacated by a Award cannot be set aside
court. by a court.
DOMESTIC INTERNATIONAL
Arbitration that is not An arbitration is
international as defined in international if:
Article (3) of the Model Law.
(Sec. 32, ADRA) 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) One of the following

places is situated
outside the State in
which the parties have
their places of
business:
1) The place of
arbitration if
determined in, or

Arthur P. Autea
pursuant to, the parties involved and (3) obligation involved. The remedies
arbitration available to the parties will depend on the kind of
agreement; arbitration. (Autea)
2) Any place where a
substantial part of Illustration: PLDT (PH) and Globe (PH) had a dispute for
the obligations of arbitration, and the place of arbitration is also in the
the commercial Philippines, it will be considered as a domestic arbitration.
relationship is to be However, if the seat of arbitration is in a country other than
performed or the the Philippines, it will be considered as a foreign arbitration
place with which pursuant to Rule 1.11 of the Special ADR Rules. If the
the subject-matter same parties had a dispute involving an obligation that is to
of the dispute is be performed outside of the Philippines, regardless of the
most closely seat of arbitration, it will be considered as an international
connected; or arbitration, pursuant to Art. 1(3) of the UNCITRAL Model
Law.
c) The parties have
expressly agreed that In another scenario, if PLDT and AT&T (US) had a dispute
the subject matter of and the seat of arbitration is in the Philippines, it will be
the arbitration considered as an international arbitration. Although this will
agreement relates to be an international arbitration, it is not a foreign arbitration
more than one country. because the seat of arbitration remains in the Philippines.
(Art. 1(3), Model Law) If the same parties had a dispute and the place of
To set aside a domestic To set aside a domestic arbitration is outside of the Philippines, then it will be an
(non-intenational) award, international award, the international and foreign arbitration.
the period to vacate the period to set it aside in not
award is within thirty (30) later than three (3) If two international entities, SingTel (SG) and AT&T (US)
days from the date of months from the date the had a dispute and the place of arbitration is set in another
service upon the applicant received the country other than the Philippines, it will be a purely foreign
applicant, the award is award, otherwise the court arbitration in the point of view of Philippine laws.
subject to confirmation by shall recognize and enforce
the court. it.
To determine whether the arbitration is domestic,

international or foreign, the (1) place of arbitration, (2)

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The requirement that an arbitration agreement be in writing

FORMAL REQUISITES is met by an electronic communication if the information
contained therein is accessible so as to be useable for
A contract to arbitrate a controversy thereafter arising subsequent reference. (Art. 7(4), Model Law)
between the parties, as well as a submission to arbitrate
an existing controversy shall be in writing and subscribed BF Corporation v. Court of Appeals (1998)
by the party sought to be charged, or by his lawful agent.
(Sec. 4, DAR) The formal requirements of an agreement to arbitrate are
the following: (a) it must be in writing and (b) it must be
The arbitration agreement shall be in writing. It is in writing subscribed by the parties or their representatives. To
if: “subscribe” means to write underneath, as one’s name;; to
sign at the end of a document. That word may sometimes
a) it is contained in a document signed by the be construed to mean to give consent to or to attest.
parties;
The Court finds that these requisites were complied with in
b) its content is recorded in any form, whether or not the contract in question. The Articles of Agreement, which
the arbitration agreement or contract has been incorporates all the other contracts and agreements
concluded orally, by conduct, or by other means; between the parties, was signed by representatives of both
parties and duly notarized. The failure of the private
c) it is contained in an exchange of statements of respondent’s representative to initial to ‘Condition of
claim and defense in which the existence of an Contract’ would therefor not affect the compliance with the
agreement is alleged by one party and not denied formal requirements for arbitration agreements because
by the other; or that particular portion of the covenants between the parties
was included by reference in the Articles of Agreement.
It is conceivable to have an arbitration agreement
although there is no physical evidence, such as in
this instance. (Autea)
d) it is contained in a document containing an

arbitration clause and that document is referred to
in a contract, provided that the reference is made to
make the clause part of the contract. (Art. 7, Model
Law)

Arthur P. Autea
arbitration and that is exactly the situation that the

PRINCIPLE OF SEPARABILITY separability doctrine sought to avoid. Thus, we find that
even the party who has repudiated the main contract is not
The principle of separability of the arbitration clause, prevented from enforcing its arbitration clause. (Cargill vs.
which means that said clause shall be treated as an San Fernando, 2011)
agreement independent of the other terms of the contract
of which it forms part. A decision that the contract is null
and void shall not entail ipso jure the invalidity of the
arbitration clause. (Rule 2.2(B), SAR; Art. 16, Model Law)
Gonzales v. Climax Mining (2007)
The doctrine of separability enunciates that an arbitration

agreement is independent of the main contract. The
arbitration agreement is to be treated as a separate
agreement and the arbitration agreement does not
automatically terminate when the contract of which it is part
comes to an end. The separability of the arbitration
agreement is especially agreement to the determination of
whether the invalidity of the main contract also nullifies the
arbitration clause. Indeed, the doctrine denotes that the
invalidity of the main contract does not affect the validity of
the arbitration agreement. Irrespective of the fact that the
main contract is invalid, the arbitration clause/agreement
still remains valid and enforceable.
Commentary: Applying the Gonzales ruling, an arbitration

agreement which forms part of the main contract shall not
be regarded as invalid or non-existent just because the
main contract is invalid or did not come into existence,
since the arbitration agreement shall be treated as a
separate agreement independent of the main contract. To
reiterate a contrary ruling would suggest that a party's
mere repudiation of the main contract is sufficient to avoid

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Court of First Instance having jurisdiction over the parties,

COMMENCEMENT OF ARBITRATION a copy of the demand for arbitration under the contract to
arbitrate, with a notice that the original demand was sent
The beginning of arbitration is the agreement and service by registered mail or delivered in person to the party
of the demand to the other party commences arbitration. against whom the claim is asserted. Such demand shall
(Autea) set forth the nature of the controversy, the amount
involved, if any, and the relief sought, and shall be
An arbitration shall be instituted by: accompanied by a true copy of the contract providing for
arbitration.
(a) In the case of a contract to arbitrate future
controversies by the service by either party upon the (c) In the case of the submission of an existing
other of a demand for arbitration in accordance with the controversy by the filing with the Clerk of the [Regional
contract. Such demand shall be set forth the nature of the Trial Court] having jurisdiction, of the submission
controversy, the amount involved, if any, and the relief agreement, setting forth the nature of the controversy, and
sought, together with a true copy of the contract providing the amount involved, if any. Such submission may be filed
for arbitration. The demand shall be served upon any party by any party and shall be duly executed by both parties.
either in person or by registered mail. In the event that the
contract between the parties provides for the appointment (d) In the event that one party neglects, fails or refuses to
of a single arbitrator, the demand shall be set forth a arbitrate under a submission agreement, the aggrieved
specific time within which the parties shall agree upon such party shall follow the procedure prescribed in
arbitrator. If the contract between the parties provides for subparagraphs (a) and (b) of this section. (Sec. 5, DAR)
the appointment of three arbitrators, one to be selected by
each party, the demand shall name the arbitrator Under Sec. 5 of DAR, adhoc arbitration is commenced by
appointed by the party making the demand; and shall a demand for arbitration which contains the following:
require that the party upon whom the demand is made 1) amount involved (if any);
shall within fifteen days after receipt thereof advise in 2) relief sought;
writing the party making such demand of the name of the 3) nature of controversy;
person appointed by the second party; such notice shall 4) appointment of arbitrator (nominee); and
require that the two arbitrators so appointed must agree 5) attachments (i.e. true copy of the contract with
upon the third arbitrator within ten days from the date of arbitration agreement). (Autea)
such notice.
A party aggrieved by the failure, neglect or refusal of
(b) In the event that one party defaults in answering the another to perform under an agreement in writing providing
demand, the aggrieved party may file with the Clerk of the for arbitration may petition the court for an order directing

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that such arbitration proceed in the manner provided for in

such agreement. Five days notice in writing of the hearing JUDICIAL RELIEF BEFORE AND AFTER
of such application shall be served either personally or by COMMENCEMENT OF ARBITRATION
registered mail upon the party in default. The court shall
hear the parties, and upon being satisfied that the making The judicial relief provided in Rule 3, whether resorted to
of the agreement or such failure to comply therewith is not before or after commencement of arbitration, shall apply
in issue, shall make an order directing the parties to only when the place of arbitration is in the Philippines.
proceed to arbitration in accordance with the terms of the (Rule 3.1, SAR)
agreement. If the making of the agreement or default be in
issue the court shall proceed to summarily hear such See and use the Flowchart of Arbitration guide in
issue. If the finding be that no agreement in writing determining the available judicial relief.
providing for arbitration was made, or that there is no
default in the proceeding thereunder, the proceeding shall BEFORE AFTER
be dismissed. If the finding be that a written provision for COMMENCEMENT COMMENCEMENT
arbitration was made and there is a default in proceeding Any party to an arbitration Any party to arbitration may
thereunder, an order shall be made summarily directing the agreement may petition the petition the appropriate
parties to proceed with the arbitration in accordance with appropriate court tocourt for judicial relief from
the terms thereof. determine any question the ruling of the arbitral
concerning the existence, tribunal on a preliminary
The court shall decide all motions, petitions or applications validity and enforceability ofquestion upholding or
filed under the provisions of this Act, within ten days after such arbitration agreement. declining its jurisdiction.
such motions, petitions, or applications have been heard (Rule 3.1, SAR) Should the ruling of the
by it. (Sec. 6, DAR) arbitral tribunal declining its
jurisdiction be reversed by
Unless otherwise agreed by the parties, the arbitral the court, the parties shall
proceedings in respect of a particular dispute commence be free to replace the
on the date on which a request for that dispute to be arbitrators or any one of
referred to arbitration is received by the respondent. (Art. them in accordance with the
21, Model Law) rules that were applicable
for the appointment of
arbitrator sought to be
replaced. (Rule 3.12, SAR)
The ruling of the trial court The principle of
is only prima facie, meaning competence-competence

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arbitration can still applies. Such prima facie determination will not, however,
commence. prejudice the right of any party to raise the issue of
The petition for judicial The petition may be filed the existence, validity and enforceability of the
determination of the within thirty (30) days after arbitration agreement before the arbitral tribunal or
existence, validity and/or having received notice of the court in an action to vacate or set aside the
enforceability of an that ruling by the arbitral arbitral award. In the latter case, the court’s review
arbitration agreement may tribunal. (Rule 3.13, SAR) of the arbitral tribunal’s ruling upholding the
be filed at any time prior to existence, validity or enforceability of the arbitration
the commencement of agreement shall no longer be limited to a mere
arbitration. prima facie determination of such issue or issues as
prescribed in this Rule, but shall be a full review of
Despite the pendency of the such issue or issues with due regard, however, to
petition provided herein, the standard for review for arbitral awards
arbitral proceedings may prescribed in these Special ADR Rules. (Rule 3.11,
nevertheless be SAR)
commenced and continue to
the rendition of an award, After Commencement of Arbitration
while the issue is pending
before the court. (Rule 3.3, The court shall not enjoin the arbitration
SAR) proceedings during the pendency of the petition.
Before Commencement of Arbitration Judicial recourse to the court shall not prevent the
arbitral tribunal from continuing the proceedings
In resolving the petition, the court must exercise and rendering its award. (Rule 3.18(B), SAR)
judicial restraint in accordance with the policy set
forth in Rule 2.4, deferring to the competence or The aggrieved party may file a motion for
jurisdiction of the arbitral tribunal to rule on its reconsideration of the order of the court. The
competence or jurisdiction. (Rule 3.8, SAR) decision of the court shall, however, not be subject
to appeal. The ruling of the court affirming the
A prima facie determination by the court upholding arbitral tribunal’s jurisdiction shall not be subject to
the existence, validity or enforceability of an a petition for certiorari. The ruling of the court that
arbitration agreement shall not be subject to a the arbitral tribunal has no jurisdiction may be the
motion for reconsideration, appeal or certiorari. subject of a petition for certiorari. (Rule 3.19, SAR)

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If the arbitral tribunal renders a final arbitral award

and the Court has not rendered a decision on the ARBITRATORS
petition from the arbitral tribunal’s preliminary ruling
affirming its jurisdiction, that petition shall become Appointment of Arbitrators
ipso facto moot and academic and shall be
dismissed by the Regional Trial Court. The The court shall act as Appointing Authority only in
dismissal shall be without prejudice to the right of the following instances:
the aggrieved party to raise the same issue in a
timely petition to vacate or set aside the award. a) Where any of the parties in an institutional
(Rule 3.21, SAR) arbitration failed or refused to appoint an
arbitrator or when the parties have failed to
reach an agreement on the sole arbitrator (in an
arbitration before a sole arbitrator) or when the
two designated arbitrators have failed to reach
an agreement on the third or presiding arbitrator
(in an arbitration before a panel of three
arbitrators), and the institution under whose
rules arbitration is to be conducted fails or is
unable to perform its duty as appointing
authority within a reasonable time from receipt
of the request for appointment;
b) In all instances where arbitration is ad hoc

and the parties failed to provide a method for
appointing or replacing an arbitrator, or
substitute arbitrator, or the method agreed upon
is ineffective, and the National President of the
Integrated Bar of the Philippines (IBP) or his
duly authorized representative fails or refuses to
act within such period as may be allowed under
the pertinent rules of the IBP or within such
period as may be agreed upon by the parties,
or in the absence thereof, within thirty (30) days
from receipt of such request for appointment;

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it is unclear if the arbitration is institutional or

c) Where the parties agreed that their dispute shall adhoc. This is under the assumption that the
be resolved by three arbitrators but no method appointing authority agreed to be one. (Autea)
of appointing those arbitrators has been agreed
upon, each party shall appoint one arbitrator Only when all three instances should fail will the
and the two arbitrators thus appointed shall court step in. (Autea)
appoint a third arbitrator. If a party fails to
appoint his arbitrator within thirty (30) days of At any time after the petition is filed and before the
receipt of a request to do so from the other court makes an appointment, it shall also dismiss
party, or if the two arbitrators fail to agree on the the petition upon being informed that the Appointing
third arbitrator within a reasonable time from Authority has already made the appointment. (Rule
their appointment, the appointment shall be 6.7, SAR)
made by the Appointing Authority. If the latter
fails or refuses to act or appoint an arbitrator If the court appoints an arbitrator, the order
within a reasonable time from receipt of the appointing an arbitrator shall be immediately
request to do so, any party or the appointed executory and shall not be the subject of a motion
arbitrator/s may request the court to appoint an for reconsideration, appeal or certiorari. An order of
arbitrator or the third arbitrator as the case may the court denying the petition for appointment of an
be. (Rule 6.1, SAR) arbitrator may, however, be the subject of a motion
for reconsideration, appeal or certiorari. (Rule 6.9,
In appointing an arbitration, the first step is to check SAR)
the agreement for the number of arbitrators,
qualifications of each and other terms. The next If, in the contract for arbitration or in the submission
step is to determine whether the arbitration is ad described in section two, provision is made for a
hoc or institutional. If it is institutional, the method of naming or appointing an arbitrator or
appointing authority will only step in if the parties arbitrators, such method shall be followed; but if no
failed to agree on who to appoint as arbitrator(s). method be provided therein the [Regional Trial
The appointing authority is whoever is designated Court] shall designate an arbitrator or arbitrators.
in the contract. If it is institutional, the default
appointing authority is the IBP President. (Autea) The [Regional Trial Court] shall appoint an
arbitrator or arbitrators, as the case may be, in the
The third instance is distinguished from the first two following instances:
because the only thing that is clear in the third (a) If the parties to the contract or submission are
instance is that there is an appointing authority but unable to agree upon a single arbitrator; or

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(b) If an arbitrator appointed by the parties is Any person appointed to serve as an arbitrator
unwilling or unable to serve, and his successor must be of legal age, in full-enjoyment of his civil
has not been appointed in the manner in which rights and know how to read and write. No person
he was appointed; or appointed to served as an arbitrator shall be related
(c) If either party to the contract fails or refuses to by blood or marriage within the sixth degree to
name his arbitrator within fifteen days after either party to the controversy. No person shall
receipt of the demand for arbitration; or serve as an arbitrator in any proceeding if he has or
(d) If the arbitrators appointed by each party to the has had financial, fiduciary or other interest in the
contract, or appointed by one party to the controversy or cause to be decided or in the result
contract and by the proper Court, shall fail to of the proceeding, or has any personal bias, which
agree upon or to select the third arbitrator. might prejudice the right of any party to a fair and
(e) The court shall, in its discretion appoint one or impartial award.
three arbitrators, according to the importance of
the controversy involved in any of the preceding No party shall select as an arbitrator any person to
cases in which the agreement is silent as to the act as his champion or to advocate his cause.
number of arbitrators.
(f) Arbitrators appointed under this section shall If, after appointment but before or during hearing, a
either accept or decline their appointments person appointed to serve as an arbitrator shall
within seven days of the receipt of their discover any circumstances likely to create a
appointments. In case of declination or the presumption of bias, or which he believes might
failure of an arbitrator or arbitrators to duly disqualify him as an impartial arbitrator, the
accept their appointments the parties or the arbitrator shall immediately disclose such
court, as the case may be, shall proceed to information to the parties. Thereafter the parties
appoint a substitute or substitutes for the may agree in writing:
arbitrator or arbitrators who decline or failed to (a) to waive the presumptive disqualifying
accept his or their appointments. (Sec. 8, DAL) circumstances; or
(b) to declare the office of such arbitrator vacant.
Where a submission or contract provides that two Any such vacancy shall be filled in the same
or more arbitrators therein designated or to be manner as the original appointment was made.
thereafter appointed by the parties, may select or (Sec. 10, DAL)
appoint a person as an additional arbitrator, the
selection or appointment must be in writing. Such The universal requirement is that an arbitrator must
additional arbitrator must sit with the original always be impartial and independent. (Autea)
arbitrators upon the hearing. (Sec. 9, DAL)

Arthur P. Autea
Qualifications and disqualifications are grounds to arbitration, the default appointment of an arbitrator
challenge an arbitrator. It msut be noted that an shall be made by the National President of the
arbitrator will only be disqualified if he did not Integrated Bar of the Philippines (IBP) or his duly
disclose his disqualification. (Autea) See authorized representative. (Sec. 26, ADRA)
Challenge of Arbitrator.
The functions referred to in Articles 11(3), 11(4),
13(3) and 14(1) of the Model Law shall be
No arbitrator shall act as a mediator in any performed by the Appointing Authority, unless
proceeding in which he is acting as arbitrator; and the latter shall fail or refuse to act within thirty
all negotiations towards settlement of the dispute (30) days from receipt of the request in which
must take place without the presence of the case the applicant may renew the application
arbitrators. with the Court. (Sec. 27, ADRA)
The arbitrators shall have the power to decide only Challenge of Arbitrators
those matters which have been submitted to them.
The terms of the award shall be confined to such The counterpart concept of a challenge is a motion
disputes. to inhibit/disqualification or motion for requsal
because in a challenge the party is asking an
The arbitrators shall have the power to assess in arbitrator to step down. Compared to a formal
their award the expenses of any party against motion filed in court, a challenge is just a simple
another party, when such assessment shall be letter. (Autea)
deemed necessary. (Sec. 20, DAL)
Assuming the contract is silent, if you challenge an
"Appointing Authority" as used in the Model Law arbitrator and the challenged arbitrator contests the
shall mean the person or institution named in the challenge, the tribunal (if not sole arbitrator) will
arbitration agreement as the appointing authority; or have to rule on the challenge. If the tribunal rejects
the regular arbitration arbitration institution under the challenge, the next step is to go to the
whose rules the arbitration is agreed to be appointing authority. If unfavorable, then you go to
conducted. Where the parties have agreed to court. (Autea)
submit their dispute to institutional arbitration rules,
and unless they have agreed to a different When an arbitrator is challenged before the arbitral
procedure, they shall be deemed to have agreed to tribunal under the procedure agreed upon by the
procedure under such arbitration rules for the parties or under the procedure provided for in
selection and appointment of arbitrators. In ad hoc Article 13 (2) of the Model Law and the challenge is

Arthur P. Autea
not successful, the aggrieved party may request the

Appointing Authority to rule on the challenge, and it The court will decide the challenge on the basis of
is only when such Appointing Authority fails or the evidence submitted by the parties in the
refuses to act on the challenge within such period following instances:
as may be allowed under the applicable rule or in
the absence thereof, within thirty (30) days from a. The other arbitrators in the arbitral tribunal
receipt of the request, that the aggrieved party may agree to the removal of the challenged
renew the challenge in court. (Rule 7.2, SAR) arbitrator; and
b. If the challenged arbitrator fails or refuses to
After hearing, the court shall remove the challenged submit his comment on the petition or the brief
arbitrator if it finds merit in the petition; otherwise, it of legal arguments as directed by the court, or
shall dismiss the petition. in such comment or brief of legal arguments, he
fails to object to his removal following the
The court shall allow the challenged arbitrator who challenge. (Rule 7.7, SAR)
subsequently agrees to accept the challenge to
withdraw as arbitrator. Any clause giving one of the parties power to
choose more arbitrators than the other is void and
The court shall accept the challenge and remove of no effect. (Art. 2045, CC)
the arbitrator in the following cases:
See Sec. 10 of DAL.
a. The party or parties who named and appointed
the challenged arbitrator agree to the challenge The arbitrators may be challenged only for the
and withdraw the appointment. reasons mentioned in the preceding section which
b. The other arbitrators in the arbitral tribunal may have arisen after the arbitration agreement or
agree to the removal of the challenged were unknown at the time of arbitration.
arbitrator; and
c. The challenged arbitrator fails or refuses to The challenge shall be made before them.
submit his comment on the petition or the brief
of legal arguments as directed by the court, or If they do not yield to the challenge, the challenging
in such comment or legal brief, he fails to object party may renew the challenge before the Court of
to his removal following the challenge. First Instance of the province or city in which the
challenged arbitrator, or, any of them, if there be
The court shall decide the challenge on the basis of more than one, resides. While the challenging
evidence submitted by the parties. incident is discussed before the court, the hearing

Arthur P. Autea
or arbitration shall be suspended, and it shall be written statement of the reasons for the challenge
continued immediately after the court has delivered to the arbitral tribunal. Unless the challenged
an order on the challenging incident. arbitrator withdraws from his office or the other
party agrees to the challenge, the arbitral tribunal
When a person is approached in connection with shall decide on the challenge.
his possible appointment as an arbitrator, he shall
disclose any circumstances likely to give rise to If a challenge under any procedure agreed upon by
justifiable doubts as to his impartiality or the parties or under the procedure of paragraph (2)
independence. An arbitrator, from the time of his of this article is not successful, the challenging
appointment and throughout the arbitral party may request, within thirty days after having
proceedings, shall without delay disclose any such received notice of the decision rejecting the
circumstances to the parties unless they have challenge, the court or other authority specified in
already been informed of them by him. (Sec. 11, article 6 to decide on the challenge, which decision
DAL) shall be subject to no appeal; while such a request
is pending, the arbitral tribunal, including the
An arbitrator may be challenged only if challenged arbitrator, may continue the arbitral
circumstances exist that give rise to justifiable proceedings and make an award. (Art. 13, Model
doubts as to his impartiality or independence, or if Law)
he does not possess qualifications agreed to by the
parties. A party may challenge an arbitrator Oil and Natural Gas Commission vs. Court of
appointed by him, or in whose appointment he has Appeals (1998)
participated, only for reasons of which he becomes
aware after the appointment has been made. (Art. The private respondent bewails the presumed bias
12, Model Law) on the part of the arbitrator who was a former
employee of the petitioner. This point deserves
The parties are free to agree on a procedure for scant consideration in view of the following
challenging an arbitrator, subject to the provisions stipulation in the contract: “It will be no objection to
of paragraph (3) of this article. any such appointment than the arbitrator so
appointed is a Commission employer (sic) than he
Failing such agreement, a party who intends to had to deal with the matter to which the supply or
challenge an arbitrator shall, within fifteen days contract relates and that in the course of his duties
after becoming aware of the constitution of the as Commission’s employee he had expressed
arbitral tribunal or after becoming aware of any views on all or any of the matter in dispute or
circumstance referred to in article 12(2), send a difference.”

Arthur P. Autea
that arbitrator. (Rule 8.2, SAR)

Commentary: If Philippine laws were applied
instead of Indian Law, the contract would be void After hearing, if the court finds merit in the petition,
pursuant to Article 2045 of the Civil Code. it shall terminate the mandate of the arbitrator who
refuses to withdraw from his office; otherwise, it
The challenged arbitrator will be replaced in the shall dismiss the petition. (Rule 8.6, SAR)
same manner on how he was initially appointed.
(Autea) Where the mandate of an arbitrator is terminated,
or he withdraws from office for any other reason, or
Termination of Mandate of Arbitrators because of his mandate is revoked by agreement
of the parties or is terminated for any other reason,
As distinguished from a challenge, which is a a substitute arbitrator shall be appointed according
remedy if the arbitrator is not qualified or is to the rules that were applicable to the appointment
disqualified, termination of mandate is the remedy if of the arbitrator being replaced. (Rule 8.8, SAR)
the arbitrator can no longer perform his function.
Nonetheless, termination of mandate has the same If an arbitrator becomes de jure or de facto unable
procedure in a challenge. (Autea) to perform his functions or for other reasons fails to
act without undue delay, his mandate terminates if
Any of the parties to an arbitration may request for he withdraws from his office or if the parties agree
the termination of the mandate of an arbitrator on the termination. Otherwise, if a controversy
where an arbitrator becomes de jure or de facto remains concerning any of these grounds, any
unable to perform his function or for other reasons party may request the court or other authority
fails to act without undue delay and that arbitrator, specified in article 6 to decide on the termination of
upon request of any party, fails or refuses to the mandate, which decision shall be subject to no
withdraw from his office. (Rule 8.1, SAR) appeal.
If an arbitrator refuses to withdraw from his office, If, under this article or article 13(2), an arbitrator
and subsequently, the Appointing Authority fails or withdraws from his office or a party agrees to the
refuses to decide on the termination of the mandate termination of the mandate of an arbitrator, this
of that arbitrator within such period as may be does not imply acceptance of the validity of any
allowed under the applicable rule or, in the absence ground referred to in this article or article 12(2).
thereof, within thirty (30) days from the time the (Art. 14, Model Law)
request is brought before him, any party may file
with the court a petition to terminate the mandate of

Arthur P. Autea
the arbitral tribunal rules as a preliminary question

ARBITRAL TRIBUNAL AND ARBITRATION that it has jurisdiction, any party may request, within
PROCEEDINGS thirty days after having received notice of that
ruling, the court specified in article 6 to decide the
Competence-Competence Principle matter, which decision shall be subject to no
appeal; while such a request is pending, the arbitral
The counterpart of this principle in conventional tribunal may continue the arbitral proceedings and
litigation is when the court would dismiss the case make an award. (Art. 16, Model Law)
based on the ground of lack of jurisdiction. The
jurisdiction of the arbitral tribunal is defined in the Principle of competence-competence means that
arbitration agreement. Thus, it shall be the arbitral the arbitral tribunal may initially rule on its own
tribunal who can determine whether or not the jurisdiction, including any objections with respect to
arbitration agreement is existent or valid. (Autea) the existence or validity of the arbitration
agreement or any condition precedent to the filing
The arbitral tribunal may rule on its own jurisdiction, of a request for arbitration. (2.2(B), SAR)
including any objections with respect to the
existence or validity of the arbitration agreement. The arbitral tribunal shall be accorded the first
opportunity or competence to rule on the issue of
A plea that the arbitral tribunal does not have whether or not it has the competence or jurisdiction
jurisdiction shall be raised not later than the to decide a dispute submitted to it for decision,
submission of the statement of defense. A party is including any objection with respect to the
not precluded from raising such a plea by the fact existence or validity of the arbitration agreement.
that he has appointed, or participated in the When a court is asked to rule upon issue/s affecting
appointment of, an arbitrator. A plea that the arbitral the competence or jurisdiction of an arbitral tribunal
tribunal is exceeding the scope of its authority shall in a dispute brought before it, either before or after
be raised as soon as the matter alleged to be the arbitral tribunal is constituted, the court must
beyond the scope of its authority is raised during exercise judicial restraint and defer to the
the arbitral proceedings. The arbitral tribunal may, competence or jurisdiction of the arbitral tribunal by
in either case, admit a later plea if it considers the allowing the arbitral tribunal the first opportunity to
delay justified. rule upon such issues.
The arbitral tribunal may rule on a plea referred to Where the court is asked to make a determination
in paragraph (2) of this article either as a of whether the arbitration agreement is null and
preliminary question or in an award on the merits. If void, inoperative or incapable of being performed,

Arthur P. Autea
under this policy of judicial restraint, the court must In international arbitration conducted in the
make no more than a prima facie determination of Philippines, a party may be presented by any
that issue. person of his choice. Provided that such
representative, unless admitted to the practice of
Unless the court, pursuant to such prima facie law in the Philippines, shall not be authorized to
determination, concludes that the arbitration appear as counsel in any Philippine court, or any
agreement is null and void, inoperative or incapable other quasi-judicial body whether or not such
of being performed, the court must suspend the appearance is in relation to the arbitration in which
action before it and refer the parties to arbitration he appears. (Sec. 22, ADRA)
pursuant to the arbitration agreement. (Rule 2.4,
SAR) “Appointing Authority” as used in the Model Law
shall mean the person or institution named in the
The policy behind competence-competence is arbitration agreement as the appointing authority;
judicial restraint. Even if there has been no or the regular arbitration institution under whose
constituted arbitration yet, the court can prima facie rules the arbitration is agreed to be conducted.
rule on the jurisdiction of the arbitration tribunal. Where the parties have agreed to a different
This ruling is prima facie because the arbitration procedure, they shall be deemed to have agreed to
tribunal can still reverse it. (Autea) procedure under such arbitration rules for the
selection and appointment of arbitrators. In ad hoc
arbitration, the default appointment of an arbitrator
Where the arbitral tribunal defers its ruling on shall be made by the National President of the IBP
preliminary question regarding its jurisdiction until or his duly authorized representative.(Sec. 26,
its final award, the aggrieved party cannot seek ADRA)
judicial relief to question the deferral and must
await the final arbitral award before seeking The functions referred to in Articles 11(3), 11(4),
appropriate judicial recourse. 13(3) and 14(1) of the Model Law shall be
performed by the appointing authority, unless the
A ruling by the arbitral tribunal deferring resolution latter shall fail or refuse to act within thirty (30) days
on the issue of its jurisdiction until final award, shall from receipt of the request in which case the
not be subject to a motion for reconsideration, applicant may renew the application with the Court.
appeal or a petition for certiorari. (Rule 3.20, SAR) (Sec. 27, ADRA)
Arbitration Proceedings The parties are free to agree on the place of

arbitration. Failing such agreement, the place of

Arthur P. Autea
arbitration shall be in Metro Manila, unless the The parties shall be treated with equality and each
arbitral tribunal, having regard to the circumstances party shall be given a full opportunity of presenting
of the case, including the convenience of the his case. (Art. 18, Model Law)
parties shall decide on a different place of
arbitration. Subject to the provisions of this Law, the parties are
free to agree on the procedure to be followed by
The arbitral tribunal may, unless otherwise agreed the arbitral tribunal in conducting the proceedings.
by the parties, meet at any place it considers
appropriate for consultation among its members, for Failing such agreement, the arbitral tribunal may
hearing witnesses, experts, or the parties, or for subject to the provisions of the Law, conduct the
inspection of goods, other property or documents. arbitration in such manner as it considers
(Sec. 30, ADRA) appropriate. The power conferred upon the arbitral
tribunal includes the power to determine the
The parties are free to agree on the language or admissibility, relevance, materiality and weight of
languages to be used in the arbitral proceedings. any evidence. (Sec. 19, Model Law)
Failing such agreement, the language to be used
shall be in English in international arbitration, and The parties are free to agree on the place of
English or Filipino for domestic arbitration, unless arbitration. Failing such agreement, the place of
the arbitral tribunal shall determine a different or arbitration shall be determined by the arbitral
another language or languages to be used in the tribunal having regard to the circumstances of the
proceedings. This agreement or determination, case, including the convenience of the parties.
unless otherwise specified therein, shall apply to
any written statement by a party, any hearing and Notwithstanding the provisions of paragraph (1) of
any award, decision or other communication by the this article, the arbitral tribunal may unless
arbitral tribunal. otherwise agreed by the parties, meet at any place
it considers appropriate for consultation among its
The arbitral tribunal may order that any members, for hearing witnesses, experts or parties,
documentary evidence shall be accompanied by a or for inspection of goods, other property or
translation into the language or languages agreed documents. (Art. 20, Model Law)
upon by the parties or determined in accordance
with par. 1 of this section. (Sec. 31, ADRA) Within the period of time agreed by the parties or
determined by the arbitral tribunal, the claimant
shall state the facts supporting his claim the points
at issue and the relief or remedy sought, and the

Arthur P. Autea
respondent shall state his defense in respect of tribunal may rely in making its decision shall be
these particulars, unless the parties have otherwise communicated to the parties. (Art. 24, Model Law)
agreed as to the required elements of such
statements. The parties may submit with their Unless otherwise agreed by the parties, if, without
statements all documents they consider to be showing sufficient cause:
relevant or may add a reference to the documents
or other evidence they will submit. a) the claimant fails to communicate his statement
of claim in accordance with article 23(l), the
Unless otherwise agreed by the parties, either party arbitral tribunal shall terminate the proceedings;
may amend or supplement his claim or defense
during the course of the arbitral proceedings, b) the respondent fails to communicate his
unless the arbitral tribunal considers it inappropriate statement of defense in accordance with article
to allow such amendment having regard to the 23(l), the arbitral tribunal shall continue the
delay in making it. (Art. 23, Model Law) proceedings without treating such failure in itself
as an admission of the claimant’s allegations;;
Subject to any contrary agreement by the parties,
the arbitral tribunal shall decide whether to hold oral c) any party fails to appear at a hearing or to
hearings for the presentation of evidence or for oral produce documentary evidence, the arbitral
argument, or whether the proceedings shall be tribunal may continue the proceedings and
conducted on the basis of documents and other make the award on the evidence before it. (Art.
materials. However, unless the parties have agreed 25, Model Law)
that no hearings shall be held, the arbitral tribunal
shall hold such hearings at an appropriate stage of Unless otherwise agreed by the parties, the arbitral
the proceedings, if so requested by a party. tribunal:
The parties shall be given sufficient advance notice a) may appoint one or more experts to report to it
of any hearing and of any meeting of the arbitral on specific issues to be determined by the
tribunal for the purposes of inspection of goods, arbitral tribunal;
other property or documents. b) may require a party to give the expert any
relevant information to produce, or to provide
All statements, documents or other information access to, any relevant documents, goods or
supplied to the arbitral tribunal by one party shall be other property for his inspection.
communicated to the other party. Also any expert
report or evidentiary document on which the arbitral

Arthur P. Autea
Unless otherwise agreed by the parties, if a party to submit and the exhibits shall be properly
so requests or if the arbitral tribunal considers it identified at the time of submission. All exhibits
necessary, the expert shall, after delivery of his shall remain in the custody of the Clerk of Court
written or oral report, participate in a hearing where during the course of the arbitration and shall be
the parties have the opportunity to put questions to returned to the parties at the time the award is
him and to present expert witnesses in order to made. The arbitrators may make an ocular
testify on the points at issue. (Art. 26, Model Law) inspection of any matter or premises which are in
dispute, but such inspection shall be made only in
Before hearing any testimony, arbitrators must be the presence of all parties to the arbitration to the
sworn, by any officer authorized by law to arbitration, unless any party who shall have
administer an oath, faithfully and fairly to hear and received notice thereof fails to appear, in which
examine the matters in controversy and to make a event such inspection shall be made in the absence
just award according to the best of their ability and of such party. (Sec. 15, DAL)
understanding. Arbitrators shall have the power to
administer the oaths to all witnesses requiring them At the close of the hearings, the arbitrators shall
to tell the whole truth and nothing but the truth in specifically inquire of all parties whether they have
any testimony which they may give in any any further proof or witnesses to present, upon the
arbitration hearing. This oath shall be required of receipt of a negative reply from all parties, the
every witness before any of his testimony is heard. arbitrators shall declare the hearing closed unless
(Sec. 13, DAL) the parties have signified an intention to file briefs.
Then the hearing shall be closed by the arbitrations
Arbitrators may, at the commencement of the after the receipt of briefs and/or reply briefs.
hearing, ask both parties for brief statements of the Definite time limit for the filing of such briefs must
issues in controversy and/or an agreed statement be fixed by the arbitrators at the close of the
of facts. Thereafter the parties may offer such hearing. Briefs may be filed by the parties within 15
evidence as they desire, and shall produce such days after the close of the oral hearings; the reply
additional evidence as the arbitrators shall require briefs, if any, shall be filed within 5 days following
or deem necessary to an understanding and such 15-day period. (Sec. 16, DAL)
determination of the dispute. The arbitrators shall
be the sole judge of the relevancy and materiality of The hearing may be reopened by the arbitrators on
the evidence offered or produced, and shall not be their own motion or upon the request of any party,
bound to conform to the Rules of Court pertaining upon good cause, shown at any time before the
to evidence. Arbitrators shall receive as exhibits in award is rendered. When hearings are thus
evidence any document which the parties may wish reopened the effective date for the closing of the

Arthur P. Autea
hearings shall be the date of the closing of the Assistance in Taking Evidence
reopened hearing. (Sec. 17, DAL)
Arbitrators shall have the power to require any
The parties to a submission or contract to arbitrate person to attend a hearing as a witness. They shall
may, by written agreement, submit their dispute to have the power to subpoena witnesses and
arbitration by other than oral hearing. The parties documents when the relevancy of the testimony
may submit an agreed statement of facts. They and the materiality thereof has been demonstrated
may also submit their respective contentions to the to the arbitrators. Arbitrators may also require the
duly appointed arbitrators in writing; this shall retirement of any witness during the testimony of
include a statement of facts, together with all any other witness. All of the arbitrators appointed in
documentary proof. Parties may also submit a any controversy must attend all the hearings in that
written argument. Each party shall provide all other matter and hear all the allegations and proofs of the
parties to the dispute with a copy of writing to any parties; but an award by the majority of them is
other party’s statements and proofs;; but if such valid unless the concurrence of all of them is
party fails to do so within 7 days after receipt of expressly required in the submission or contract to
such statements and proofs, he shall be deemed to arbitrate. The arbitrator or arbitrators shall have the
have waived his right to reply. Upon the delivery to power at any time, before rendering the award,
the arbitrators of all statements and documents, without prejudice to the rights of any party to
together with any reply statements, the arbitrators petition the court to take measures to safeguard
shall declare the proceedings in lieu of hearing and/or conserve any matter which is the subject of
closed. (Sec. 18, DAL) the dispute in arbitration. (Sec. 14, DAL)
Arbitration under a contract or submission shall be The arbitral tribunal or a party with the approval of
deemed a special proceeding, of which the court the arbitral tribunal may request from competent
specified in the contract or submission, or if none court of this State assistance in taking evidence.
be specified, the Court of First Instance for the The court may execute the request within its
province or city in which one of the parties resides competence and according to its rules on taking
or is doing business, or in which the arbitration was evidence. (Art. 27, Model Law)
held, shall have jurisdiction. Any application to the
court, or a judge thereof, hereunder shall be made Any party to an arbitration, whether domestic or
in manner provided for the making and hearing of foreign, may request the court to provide
motions, except as otherwise herein expressly assistance in taking evidence. (Rule 9.1, SAR)
provided. (Sec. 22, DAL)

Arthur P. Autea
A party requiring assistance in the taking of within the same city or province, or within fifteen
evidence may petition the court to direct any days after appointment if the parties reside in
person, including a representative of a corporation, different provinces, set a time and place for the
association, partnership or other entity (other than a hearing of the matters submitted to them, and must
party to the ADR proceedings or its officers) found cause notice thereof to be given to each of the
in the Philippines, for any of the following: parties. The hearing can be postponed or
adjourned by the arbitrators only by agreement of
a. To comply with a subpoena ad testificandum the parties; otherwise, adjournment may be ordered
and/or subpoena duces tecum; by the arbitrators upon their own motion only at the
b. To appear as a witness before an officer for the hearing and for good and sufficient cause. No
taking of his deposition upon oral examination adjournment shall extend the hearing beyond the
or by written interrogatories; day fixed in the submission or contract for
c. To allow the physical examination of the rendering the award, unless the time so fixed is
condition of persons, or the inspection of things extended by the written agreement of the parties to
or premises and, when appropriate, to allow the submission or contract or their attorneys, or
the recording and/or documentation of unless the parties have continued with the
condition of persons, things or premises (i.e., arbitration without objection to such adjournment.
photographs, video and other means of
recording/documentation); The hearing may proceed in the absence of any
d. To allow the examination and copying of party who, after due notice, fails to be present at
documents; and such hearing or fails to obtain an adjournment
e. To perform any similar acts. (Rule 9.5, SAR) thereof. An award shall not be made solely on the
If the evidence sought is not privileged, and is default of a party. The arbitrators shall require the
material and relevant, the court shall grant the other party to submit such evidence as they may
assistance in taking evidence requested and shall require for making an award.
order petitioner to pay costs attendant to such
assistance. (Rule 9.8, SAR) No one other than a party to said arbitration, or a
person in the regular employ of such party duly
Confidentiality authorized in writing by said party, or a practicing
attorney-at-law, shall be permitted by the arbitrators
Subject to the terms of the submission or contract, to represent before him or them any party to the
if any are specified therein, are arbitrators selected arbitration. Any party desiring to be represented by
as prescribed herein must, within five days after counsel shall notify the other party or parties of
appointment if the parties to the controversy reside such intention at least five days prior to the hearing.

Arthur P. Autea
The arbitration proceedings, including the records,

The arbitrators shall arrange for the taking of a evidence and the arbitral award, shall be
stenographic record of the testimony when such a considered confidential and shall not be published
record is requested by one or more parties, and except (1) with the consent of the parties, or (2) for
when payment of the cost thereof is assumed by the limited purpose of disclosing to the court of
such party or parties. relevant documents in cases where resort to the
court is allowed herein. Provided, however, that the
Persons having a direct interest in the controversy court in which the action or the appeal is pending
which is the subject of arbitration shall have the may issue a protective order to prevent or prohibit
right to attend any hearing; but the attendance of disclosure of documents or information containing
any other person shall be at the discretion of the secret processes, developments, research and
arbitrators. (Sec. 12, DAL) other information where it is shown that the
applicant shall be materially prejudiced by an
"CONFIDENTIAL INFORMATION" means any authorized disclosure thereof. (Sec. 23, ADRA)
information, relative to the subject of mediation or
arbitration, expressly intended by the source not to As a general rule, arbitration is confidential.
be disclosed, or obtained under circumstances that Exceptions to this rule is that (1) if the parties
would create a reasonable expectation on behalf of expressly waive confidentiality, or (2) disclose to
the source that the information shall not be the court who can intervene. Court intervention is
disclosed. It shall include (1) communication, oral allowed in the following cases:
or written, made in a dispute resolution
proceedings, including any memoranda, notes or 1) application for interim measure;
work product of the neutral party or non-party 2) appointment of arbitrator;
participant, as defined in this Act; (2) an oral or 3) challenge of arbitrator;
written statement made or which occurs during 4) vacate/modify the award;
mediation or for purposes of considering, 5) enforce the award.
conducting, participating, initiating, continuing of
reconvening mediation or retaining a mediator; and A party, counsel or witness who disclosed or who
(3) pleadings, motions manifestations, witness was compelled to disclose information relative to
statements, reports filed or submitted in an the subject of ADR under circumstances that would
arbitration or for expert evaluation. (Sec. 3(h), create a reasonable expectation, on behalf of the
ADRA) source, that the information shall be kept
confidential has the right to prevent such
information from being further disclosed without the

Arthur P. Autea
express written consent of the source or the party discovery solely by reason of its use therein. (Rule
who made the disclosure. (Rule 10.1, SAR) 10.8, SAR)
A party may request a protective order at anytime

there is a need to enforce the confidentiality of the
information obtained, or to be obtained, in ADR
proceedings.
If there is a pending court proceeding in which the

information obtained in an ADR proceeding is
required to be divulged or is being divulged, the
party seeking to enforce the confidentiality of the
information may file a motion with the court where
the proceedings are pending to enjoin the
confidential information from being divulged or to
suppress confidential information. (Rule 10.2, SAR)
A protective order may be granted only if it is

shown that the applicant would be materially
prejudiced by an unauthorized disclosure of the
information obtained, or to be obtained, during an
ADR proceeding. (Rule 10.4, SAR)
If the court finds the petition or motion meritorious,

it shall issue an order enjoining a person or persons
from divulging confidential information. In resolving
the petition or motion, the courts shall be guided by
the following principles applicable to all ADR
proceedings: Confidential information shall not be
subject to discovery and shall be inadmissible in
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

Arthur P. Autea
arbitration unless it finds that the agreement is null and

REFERRAL TO ARBITRATION void, inoperative or incapable of being performed.
If any suit or proceeding be brought upon an issue arising Where an action referred to in par. 1 of this article has
out of an agreement providing for the arbitration thereof, been brought, arbitral proceedings may nevertheless be
the court in which such suit or proceeding is pending, upon commenced or continued, and an award may be made,
being satisfied that the issue involved in such suit or while the issue is pending before the court. (Art. 8, Model
proceeding is referable to arbitration, shall stay the action Law)
or proceeding until an arbitration has been had in
accordance with the terms of the agreement: Provided that Where the arbitration agreement exists before the action
the applicant, for the stay is not in default in proceeding is filed—The request for referral shall be made not later
with such arbitration. (Sec. 7, DAL) than the pre-trial conference.
A court before which an action is brought in a matter which After the pre-trial conference, the court will only act upon
is the subject matter of an arbitration shall, if at least one the request for referral if it is made with the agreement of
party so requests not later that the pre-trial conference, or all parties to the case.
upon the request of both parties thereafter, refer the
parties to arbitration unless it finds that the arbitration Submission agreement—If there is no existing arbitration
agreement is null and void, inoperative or incapable of agreement at the time the case is filed but the parties
being performed. (Sec. 24, ADRA) subsequently enter into an arbitration agreement, they may
request the court to refer their dispute to arbitration at any
In interpreting the Act, the court shall have due regard to time during the proceedings. (Rule 4.2, SAR)
the policy of the law in favor of arbitration. Where action is
commenced by or against multiple parties, one or more of As a general rule, a request for arbitration is made not later
whom are parties who are bound by the arbitration than the pre-trial conference. Exceptions to this rule are
agreement although the civil action may continue as to the following:
those who are not bound by such arbitration agreement. 1) if there is an arbitration clause, upon the request of
(Sec. 25, ADRA) both parties; and
2) submission agreements. (Autea)
A court before which an action is brought in a matter which
is the subject of an arbitration agreement shall, if a party so After hearing, the court shall stay the action and,
requests not later than when submitting his first statement considering the statement of policy embodied in Rule 2.4,
on the substance of the dispute, refer the parties to above, refer the parties to arbitration if it finds prima facie,
based on the pleadings and supporting documents

Arthur P. Autea
submitted by the parties, that there is an arbitration d. Referral to arbitration does not appear to be the most
agreement and that the subject-matter of the dispute is prudent action; or
capable of settlement or resolution by arbitration in e. The stay of the action would prejudice the rights of the
accordance with Section 6 of the ADR Act. Otherwise, the parties to the civil action who are not bound by the
court shall continue with the judicial proceedings. (Rule arbitration agreement.
4.5, SAR)
The court may, however, issue an order directing the
When a case is referred to arbitration, the proceedings are inclusion in arbitration of those parties who are not bound
merely suspended and not dismissed because there may by the arbitration agreement but who agree to such
be other needs for the parties to make use of the role of inclusion provided those originally bound by it do not object
the court (e.g. interim measures, assistance in taking to their inclusion. (Rule 4.7, SAR)
evidence, appointment of arbitrators, challenging the
arbitrator, termination of mandate, etc.). (Autea) As a general rule, it is not ministerial on the part of the
court to grant a motion to suspend proceedings, unless it
An order referring the dispute to arbitration shall be finds the arbtration agreement null and void, inoperative or
immediately executory and shall not be subject to a motion incapable of being performed. The benchmarks for
for reconsideration, appeal or petition for certiorari. determining if the dispute is arbitrable are the Exclusions
provided by ADRA. (Autea)
An order denying the request to refer the dispute to
arbitration shall not be subject to an appeal, but may be Despite the pendency of the action referred to in Rule 4.1,
the subject of a motion for reconsideration and/or a petition above, arbitral proceedings may nevertheless be
for certiorari. (Rule 4.6, SAR) commenced or continued, and an award may be made,
while the action is pending before the court. (Rule 4.8,
The court shall not decline to refer some or all of the SAR)
parties to arbitration for any of the following reasons:
Fiesta World Mall Corporation v. Linberg Philippines
a. Not all of the disputes subject of the civil action may (2006)
be referred to arbitration;
b. Not all of the parties to the civil action are bound by Where a party has already filed a complaint with the trial
the arbitration agreement and referral to arbitration court without prior recourse to arbitration, the proper
would result in multiplicity of suits; procedure to enable an arbitration panel to resolve the
c. The issues raised in the civil action could be speedily parties’ dispute pursuant to their contract is for the trial
and efficiently resolved in its entirety by the court court to stay the proceedings. After the arbitration
rather than in arbitration;

Arthur P. Autea
proceeding has been pursued and completed, then the trial

court may confirm the award made by the arbitration panel. INTERIM MEASURES OF PROTECTION
Commentary: This case illustrates the discretionary nature The counterpart concept of interim measures in
on the part of the judge to determine whether or not the convetional litigation are provisional remedies. A party in
dispute should be referred to arbitration. The judge arbitration is like a party in litigation. If one thinks the other
determines whether a dispute falls under the arbitration party is trying to dissipate or conceal his assets in fraud of
clause or the non-arbitrable clause. Once it has been the plaintiff in order to frustrate a potential future judgment,
determined that the case is arbitrable, the court no longer specific provisional remedies under the Rules of Court
has discretion whether to refer the dispute to arbitration or shall be applicable. (Autea)
not.
Instead of going to the tribunal, the party who would like to
Del Monte Corporation-USA v. Court of Appeals (2001) avail of interim measures may go to the court. Under Sec.
14 of DAL, it is up to the party where to ask for interim
The object of arbitration is to allow the expeditious measures. (Autea)
determination of a dispute. Where the issue before the
court could not be speedily and efficiently resolved in its The arbitrator or arbitrators shall have the power at any
entirety if simultaneous arbitration proceedings and trial, or time, before rendering the award, without prejudice to the
suspension of trial pending arbitration, is allowed, the court rights of any party to petition the court to take measures to
should hear and adjudicate the case in a single and safeguard and/or conserve any matter which is the subject
complete proceeding. of the dispute in arbitration. (Sec. 14, DAL)
Under this law, both the tribunal and the court have the
power to grant interim measures. It is up to the party to
choose. What is not allowed is that asking both the tribunal
and the court to grant interim measures which would
constitute forum shopping. (Autea)
Sec. 28 of ADRA provides the considerations needed

before the interim measures may be granted. (Autea)
It is not incompatible with an arbitration agreement for a

party to request, before constitution of the tribunal, from a
Court an interim measure of protection and for the Court to

Arthur P. Autea
grant such measure. After constitution of the arbitral whom the relief is requested, the grounds for the relief,
tribunal and during arbitral proceedings, a request for an and evidence supporting the request.
interim measure of protection or modification thereof, may (5) The order shall be binding upon the parties.
be made with the arbitral tribunal or to the extent that the
arbitral tribunal has no power to act or is unable to act (6) Either party may apply with the Court for assistance in
effectively, the request may be made with the Court. The Implementing or enforcing an interim measure ordered
arbitral tribunal is deemed constituted when the sole by an arbitral tribunal.
arbitrator or the third arbitrator who has been nominated,
has accepted the nomination and written communication of (7) A party who does not comply with the order shall be
said nomination and acceptance has been received by the liable for all damages resulting from noncompliance,
party making request. including all expenses, and reasonable attorney's fees,
paid in obtaining the order's judicial enforcement.
The following rules on interim or provisional relief shall be (Sec. 28, ADRA)
observed:
Before the constitution of the arbitral tribunal, interim relief
1) Any party may request that provision relief be granted may be sought from courts. Once the tribunal has been
against the adverse party. constituted, interim relief may be sought from the arbitral
tribunal. Unless the arbitral tribunal no longer has the
2) Such relief may be granted: power to act or is unable to act effectively, the request may
(i) to prevent irreparable loss or injury: be made with the court. Under the ADRA, the interim
(ii) to provide security for the performance of any measure granted by the court may also be modified by the
obligation; arbitral tribunal. (Autea)
(iii) to produce or preserve any evidence; or
(iv) to compel any other appropriate act or omission. It is not incompatible with an arbitration agreement for a
(3) The order granting provisional relief may be party to request, before or during arbitral proceedings, from
conditioned upon the provision of security or any act or a court an interim measure of protection and for a court to
omission specified in the order. grant such measure. (Art. 9, Model Law)
(4) Interim or provisional relief is requested by written Unless otherwise agreed by the parties, the arbitral tribunal
application transmitted by reasonable means to the may, at the request of a party, order any party to take such
Court or arbitral tribunal as the case may be and the interim measure of protection as the arbitral tribunal may
party against whom the relief is sought, describing in consider necessary in respect of the subject-matter of the
appropriate detail the precise relief, the party against dispute. The arbitral tribunal may require any party to

Arthur P. Autea
provide appropriate security in connection with such property; or,

measure. (Art. 17, Model Law) e. Assistance in the enforcement of an interim measure
of protection granted by the arbitral tribunal, which the
A petition for an interim measure of protection may be latter cannot enforce effectively. (Rule 5.6, SAR)
made (a) before arbitration is commenced, (b) after
arbitration is commenced, but before the constitution of the The court shall not deny an application for assistance in
arbitral tribunal, or (c) after the constitution of the arbitral implementing or enforcing an interim measure of protection
tribunal and at any time during arbitral proceedings but, at ordered by an arbitral tribunal on any or all of the following
this stage, only to the extent that the arbitral tribunal has grounds:
no power to act or is unable to act effectively. (Rule 5.2,
SAR) a. The arbitral tribunal granted the interim relief ex parte;
or
The following grounds, while not limiting the reasons for b. The party opposing the application found new material
the court to grant an interim measure of protection, indicate evidence, which the arbitral tribunal had not
the nature of the reasons that the court shall consider in considered in granting in the application, and which, if
granting the relief: considered, may produce a different result; or
c. The measure of protection ordered by the arbitral
a. The need to prevent irreparable loss or injury; tribunal amends, revokes, modifies or is inconsistent
b. The need to provide security for the performance of with an earlier measure of protection issued by the
any obligation; court.
c. The need to produce or preserve evidence; or
d. The need to compel any other appropriate act or If it finds that there is sufficient merit in the opposition to
omission. (Rule 5.4, SAR) the application based on letter (b) above, the court shall
refer the matter back to the arbitral tribunal for appropriate
The following, among others, are the interim measures of determination. (Rule 5.11, SAR)
protection that a court may grant:
Any court order granting or denying interim measure/s of
a. Preliminary injunction directed against a party to protection is issued without prejudice to subsequent grant,
arbitration; modification, amendment, revision or revocation by the
b. Preliminary attachment against property or arbitral tribunal as may be warranted.
garnishment of funds in the custody of a bank or a
third person; An interim measure of protection issued by the arbitral
c. Appointment of a receiver; tribunal shall, upon its issuance, be deemed to have ipso
d. Detention, preservation, delivery or inspection of jure modified, amended, revised or revoked an interim

Arthur P. Autea
measure of protection previously issued by the court to the

extent that it is inconsistent with the subsequent interim ARBITRAL AWARD
measure of protection issued by the arbitral tribunal. (Rule
5.13, SAR) An agreement to refer a dispute to arbitration shall mean
that the arbitral award shall be final and binding.
Any question involving a conflict or inconsistency between Consequently, a party to an arbitration is precluded from
an interim measure of protection issued by the court and filing an appeal or a petition for certiorari questioning the
by the arbitral tribunal shall be immediately referred by the merits of an arbitral award. (Rule 19.7, SAR)
court to the arbitral tribunal which shall have the authority
to decide such question. (Rule 5.14, SAR) Although the SAR gives the losing party the remedy to
prevent enforcement of the arbitral award, it must be noted
The court shall defer action on any pending petition for an that the grounds to vacate, set aside or refuse recognition
interim measure of protection filed by a party to an are not on the merits of the arbitration. (Autea)
arbitration agreement arising from or in connection with a
dispute thereunder upon being informed that an arbitral When parties resort to court regarding arbitral awards, the
tribunal has been constituted pursuant to such agreement. procedure followed by the court is not summary. (Autea)
The court may act upon such petition only if it is
established by the petitioner that the arbitral tribunal has In all kinds of arbitration, there is a presumption of
no power to act on any such interim measure of protection enforcement. (Autea) An arbitral award shall enjoy the
or is unable to act thereon effectively. (Rule 5.15, SAR) presumption that it was made and released in due course
of arbitration and is subject to confirmation by the court.
Finally, under the SAR, the power of the arbitral tribunal to (Rule 11.9, SAR) Unless a ground to vacate, set aside or
modify interim measures granted by the court may then be refuse recognition an arbitral award is fully established, the
amended, modified, or revoked by the arbitral tribunal. court shall confirm the award. (Autea)
Hence, there was a dilution of power of the court to grant
interim relief once an arbitral tribunal has been constituted. When an award is vacated, the court cannot substitute its
(Autea) own judgment. Instead, the court must remand the case to
the same arbitrators or a different set of arbitrators. (Autea)
Domestic Arbitral Award
Any stipulation that the arbitrators’ award or

decision shall be final, is valid, without prejudice to
Articles 2038, 2039, and 2040. (Art. 2044, CC)

Arthur P. Autea
shall be signed by the arbitrators. No arbitrator shall

Confirmation of the arbitral award by the court is act as a mediator in any proceeding in which he is
not essential to the validity of the award because of acting as arbitrator; and all negotiations towards
Art. 2044 of the Civil Code. It does not go into the settlement of the dispute must take place without
validity of the award and is only necessary for the the presence of the arbitrators.
enforcement of the award. Thus, an arbitral award,
once confirmed by the court, becomes executory. The arbitrators shall have the power to decide only
(Autea) those matters which have been submitted to them.
The terms of the award shall be confined to such
Unless the parties shall have stipulated by written disputes.
agreement the time within which the arbitrators
must render their award, the written award of the The arbitrators shall have the power to assess in
arbitrators shall be rendered within thirty days after their award the expenses of any party against
the closing of the hearings or if the oral hearings another party, when such assessment shall be
shall have been waived, within thirty days after the deemed necessary. (Sec. 20, DAL)
arbitrators shall have declared such proceedings in
lieu of hearing closed. This period may be extended Where an award is vacated, the court, in its
by mutual consent of the parties. (Sec. 19, DAL) discretion, may direct a new hearing either before
the same arbitrators or before a new arbitrator or
The award must be made in writing and signed and arbitrators to be chosen in the manner provided in
acknowledged by a majority of the arbitrators, if the submission or contract for the selection of the
more than one; and by the sole arbitrator, if there is original arbitrator or arbitrators, and any provision
only one. Each party shall be furnished with a copy limiting the time in which the arbitrators may make
of the award. The arbitrators in their award may a decision shall be deemed applicable to the new
grant any remedy or relief which they deem just arbitration and to commence from the date of the
and equitable and within the scope of the court's order.
agreement of the parties, which shall include, but
not be limited to, the specific performance of a Where the court vacates an award, costs, not
contract. exceeding fifty pesos and disbursements may be
awarded to the prevailing party and the payment
In the event that the parties to an arbitration have, thereof may be enforced in like manner as the
during the course of such arbitration, settled their payment of costs upon the motion in an action.
dispute, they may request of the arbitrators that (Sec. 24, DAL)
such settlement be embodied in an award which

Arthur P. Autea
In any one of the following cases, the court must application was filed. Costs of the application and
make an order modifying or correcting the award, the proceedings subsequent thereto may be
upon the application of any party to the controversy awarded by the court in its discretion. If awarded,
which was arbitrated: the amount thereof must be included in the
judgment. (Sec. 27, DAL)
(a) Where there was an evident miscalculation of
figures, or an evident mistake in the description The party moving for an order confirming,
of any person, thing or property referred to in modifying, correcting, or vacating an award, shall at
the award; or the time that such motion is filed with the court for
the entry of judgment thereon also file the following
(b) Where the arbitrators have awarded upon a papers with the Clerk of Court:
matter not submitted to them, not affecting the
merits of the decision upon the matter (a) The submission, or contract to arbitrate; the
submitted; or appointment of the arbitrator or arbitrators; and
each written extension of the time, if any, within
(c) Where the award is imperfect in a matter of which to make the award.
form not affecting the merits of the controversy,
and if it had been a commissioner's report, the (b) A verified of the award.
defect could have been amended or
disregarded by the court. (c) Each notice, affidavit, or other paper used upon
the application to confirm, modify, correct or
The order may modify and correct the award so as vacate such award, and a copy of each of the
to effect the intent thereof and promote justice court upon such application.
between the parties. (Sec. 25, DAL)
The judgment shall be docketed as if it were
Notice of a motion to vacate, modify or correct the rendered in an action.
award must be served upon the adverse party or
his counsel within thirty days after award is filed or The judgment so entered shall have the same force
delivered, as prescribed by law for the service upon and effect in all respects, as, and be subject to all
an attorney in an action. (Sec. 26, DAL) the provisions relating to, a judgment in an action;
and it may be enforced as if it had been rendered in
Upon the granting of an order confirming, modifying the court in which it is entered. (Sec. 28, DAL)
or correcting an award, judgment may be entered in
conformity therewith in the court wherein said

Arthur P. Autea
A domestic arbitral award when confirmed shall be Nonetheless, the arbitrators’ awards is not absolute
enforced in the same manner as final and and without exceptions. The arbitrators cannot
executory decisions of the Regional Trial Court. resolve issues beyond the scope of the submission
agreement. The parties to such an agreement are
The confirmation of a domestic award shall be bound by the arbitrators’ award only to the extent
made by the regional trial court in accordance with and in the manner prescribed by the contract and
the Rules of Procedure to be promulgated by the only if the award is rendered in conformity thereto.
Supreme Court. Thus, Sections 24 and 25 of the Arbitration Law
provide grounds for vacating, rescinding or
A CIAC arbitral award need not be confirmed by the modifying an arbitration award. Where the
regional trial court to be executory as provided conditions described in Articles 2038, 2039 and
under E.O. No. 1008. (Sec. 40, ADRA) 2040 of the Civil Code applicable to compromises
and arbitration are attendant, the arbitration award
Asset Privatization Trust v. Court of Appeals may also be annulled.
(1998)
Commentary: When a court dismisses a case, it
As a rule, the award of an arbitrator cannot be set loses its jurisdiction.
aside for mere errors of judgment either as to the
law or as to the facts. Courts are without power to It must be remembered that a petition (not a
amend or overrule merely because of disagreement motion) is filed when the court has no jurisdiction.
with matters of law or facts determined by the Thus, when the court suspended the proceedings
arbitrators. They will not review the findings of law for arbitration, the proper pleading to file is a motion
and fact contained in an award, and will not because the court did not lose its jurisdiction.
undertake to substitute their judgment for that of the (Autea)
arbitrators, since any other rule would make an
award the commencement, not the end, of International Commercial Arbitral Award
litigation. Errors of law and fact, or an erroneous
decision of matters submitted to the judgment of Model Law, Article 28. Rules applicable to
the arbitrators, are insufficient to invalidate an substance of dispute. (1) The arbitral tribunal shall
award fairly and honestly made. Judicial review of decide the dispute in accordance with such rules of
an arbitration is, thus, more limited than judicial law as are chosen by the parties as applicable to
review of a trial. the substance of the dispute. Any designation of
the law or legal system of a given State shall be
construed, unless otherwise expressed, as directly

Arthur P. Autea
referring to the substantive law of that State and not (2) An award on agreed terms shall be made in
to its conflict of laws rules. accordance with the provisions of article 31 and
shall state that it is an award. Such an award has
(2) Failing any designation by the parties, the the same status and effect as any other award on
arbitral tribunal shall apply the law determined by the merits of the case.
the conflict of laws rules which it considers
applicable. Model Law, Article 31. Form and contents of award.
(1) The award shall be made in writing and shall be
(3) The arbitral tribunal shall decide ex aequo et signed by the arbitrator or arbitrators. In arbitrator
bono or as amiable compositeur only if the parties proceedings with more than one arbitrator, the
have expressly authorized it to do so. signatures of the majority of all members of the
arbitral tribunal shall suffice, provided that the
(4) In all cases, the arbitral tribunal shall decide in reason for any omitted signature is stated.
accordance with the terms of the contract and shall
take into account the usages of the trade applicable (2) The award shall state the reasons upon which it
to the transaction. is based, unless the parties have agreed that no
reasons are to be given or the award is an award
Model Law, Article 29. Decision-making by panel of on agreed terms under article 30.
arbitrators. In arbitral proceedings with more than
one arbitrator, any decision of the arbitral tribunal (3) The award shall state its date and the place of
shall be made, unless otherwise agreed by the arbitration as determined in accordance with article
parties, by a majority of all its members. However, 20 (1). The award shall be deemed to have been
questions of procedure may be decided by a made at that place.
presiding arbitrator, if so authorized by the parties
or all members of the arbitral tribunal. (4) After the award is made, a copy signed by the
arbitrators in accordance with paragraph (1) of this
Model Law, Article 30. Settlement. (1) If, during article shall be delivered to each party.
arbitral proceedings, the parties settle the dispute,
the arbitral tribunal shall terminate the proceedings Model Law, Article 32. Termination of proceedings.
and, if requested by the parties and not objected to (1) The arbitral proceedings are terminated by the
by the arbitral tribunal, record the settlement in the final award or by an order of the arbitral tribunal in
form of an arbitral award on agreed terms. accordance with paragraph (2) of this article.

Arthur P. Autea
(2) The arbitral tribunal shall issue an order for the arbitral tribunal to give an interpretation of a
termination of the arbitral proceedings when: specific point or part of the award.
(a) the claimant withdraws his claim, unless the If the arbitral tribunal considers the request to be
respondent objects thereto and the arbitral justified, it shall make the correction or give the
tribunal recognizes a legitimate interest on his interpretation within thirty days of receipt of the
part in obtaining a final settlement of the request. The interpretation shall form part of the
dispute; award.
(b) the parties agree on the termination of the (2) The arbitral tribunal may correct any error of the
proceedings; type referred to in paragraph (1) (a) of this article
on its own initiative within thirty days of the day of
(c) the arbitral tribunal finds that the the award.
continuation of the proceedings has for any
other reason become unnecessary or (3) Unless otherwise agreed by the parties, a party,
impossible. with notice to the other party, may request, within
thirty days of receipt of the award, the arbitral
3. The mandate of the arbitral tribunal terminates tribunal to make an additional award as to claims
with the termination of the arbitral proceedings, presented in the arbitral proceedings but omitted
subject to the provisions of articles 33 and 34 (4). from the award. If the arbitral tribunal considers the
request to be justified, it shall make the additional
Model Law, Article 33. Correction of interpretation award within sixty days.
of award; additional award. (1) Within thirty days of
receipt of the award, unless another period of time (4) The arbitral tribunal may extend, if necessary,
has been agreed upon by the parties: the period of time within which it shall make a
correction, interpretation or an additional award
(a) a party, with notice to the other party, may under paragraph (1) or (3) of this article.
request the arbitral tribunal to correct in the
award any errord in computation, any clerical or (5) The provisions of article 31 shall apply to a
typographical errors or any errors of similar correction or interpretation of the award or to an
nature; additional award.
(b) if so agreed by the parties, a party, with Model Law, Article 34. Application for setting aside
notice to the other party, may request the as exclusive recourse against arbitral award. (1)

Arthur P. Autea
Recourse to a court against an arbitral award may matters not submitted to arbitration may be
be made only by an application for setting aside in set aside; or
accordance with paragraphs (2) and (3) of this
article. (iv) the composition of the arbitral tribunal or
the arbitral procedure was not in
(2) An arbitral award may be set aside by the court accordance with the agreement of the
specified in article 6 only if: parties, unless such agreement was in
conflict with a provision of this Law from
(a) the party making the application furnishes which the parties cannot derogate, or, failing
proof that: such agreement, was not in accordance
with this Law; or
(i) a party to the arbitration agreement
referred to in article 7 was under some (b) the court finds that:
incapacity; or the said agreement is not
valid under the law to which the parties (i) the subject-matter of the dispute is not
have subjected it or, failing any indication capable of settlement by arbitration under
thereon, under the law of this State; or the law of this State; or
(ii) the party making the application was not (ii) the award is in conflict with the public
given proper notice of the appointment of an policy of this State.
arbitrator or of the arbitral proceedings or
was otherwise unable to present his case; (3) An application for setting aside may not be
or made after three months have elapsed from the
date on which the party making that application had
(iii) the award deals with a dispute not received that award or, if a request had been made
contemplated by or not falling within the under article 33, from the date on which that
terms of the submission to arbitration, or request had been disposed of by the arbitral
contains decisions on matters beyond the tribunal.
scope of the submission to arbitration,
provided that, if the decisions on matters (4) The court, when asked to set aside an award,
submitted to arbitration can be separated may, where appropriate and so requested by a
from those not so submitted, only that part party, suspend the setting aside proceedings for a
of the award which contains decisions on period of time determined by it in order to give the
arbitral tribunal an opportunity to resume the

Arthur P. Autea
arbitral proceedings or to take such other action as valid under the law to which the parties
in the arbitral tribunal's opinion will eliminate the have subjected it or, failing any indication
grounds for setting aside. thereon, under the law of the country where
the award was made; or
Model Law Article 35. Recognition and
enforcement. (1) An arbitral award, irrespective of (ii) the party against whom the award is
the country in which it was made, shall be invoked was not given proper notice of the
recognized as binding and, upon application in appointment of an arbitrator or of the
writing to the competent court, shall be enforced arbitrator proceedings or was otherwise
subject to the provisions of this article and of article unable to present his case; or
36.
(iii) the award deals with a dispute not
(2) The party relying on an award or applying for its contemplated by or not falling within the
enforcement shall supply the duly authenticated terms of the submission to arbitration, or it
original award or a duly certified copy thereof, and contains decisions on matters beyond the
the original arbitration agreement referred to in scope of the submission to arbitration,
article 7 or a duly certified copy thereof. If the provided that, if the decisions on matters
award or agreement is not made in an official submitted to arbitration can be separated
language of this State, the party shall supply a duly from those not so submitted, that part of the
certified translation thereof into such language. award which contains decisions on matters
submitted to arbitration may be recognized
Model Law, Article 36. Grounds for refusing and enforced; or
recognition or enforcement. (1) Recognition or
enforcement of an arbitral award, irrespective of the (iv) the composition of the arbitral tribunal or
country in which it was made, may be refused only: the arbitral procedure was not in
accordance with the agreement of the
(a) at the request of the party against whom it is parties or, failing such agreement, was not
invoked, if that party furnishes to the competent in accordance with the law of the country
court where recognition or enforcement is where the arbitration took place; or
sought proof that:
(v) the award has not yet become binding
(i) a party to the arbitration agreement on the parties or has been set aside or
referred to in article 7 was under some suspended by a court of the country in
incapacity; or the said agreement is not

Arthur P. Autea
which, or under the law of which, that award file with the court the original or authenticated copy
was made; or of the award and the arbitration agreement. If the
award or agreement is not made in any of the
(b) if the court finds that: official languages, the party shall supply a duly
certified translation thereof into any of such
(i) the subject-matter of the dispute is not languages.
capable of settlement by arbitration under
the law of this State; or The applicant shall establish that the country in
which foreign arbitration award was made is a party
(ii) the recognition or enforcement of the to the New York Convention.
award would be contrary to the public policy
of this State. If the application for rejection or suspension of
enforcement of an award has been made, the
(2) If an application for setting aside or suspension regional trial court may, if it considers it proper,
of an award has been made to a court referred to in vacate its decision and may also, on the application
paragraph (1) (a) (v) of this article, the court where of the party claiming recognition or enforcement of
recognition or enforcement is sought may, if it the award, order the party to provide appropriate
considers it proper, adjourn its decision and may security. (Sec. 42, ADRA)
also, on the application of the party claiming
recognition or enforcement of the award, order the The recognition and enforcement of foreign arbitral
other party to provide appropriate security. awards not covered by the New York Convention
shall be done in accordance with procedural rules
Foreign Arbitral Award to be promulgated by the Supreme Court. The
Court may, grounds of comity and reciprocity,
The New York Convention shall govern the recognize and enforce a nonconvention award as a
recognition and enforcement of arbitral awards convention award. (Sec. 43, ADRA)
covered by the said Convention.
A foreign arbitral award when confirmed by a court
The recognition and enforcement of such arbitral of a foreign country, shall be recognized and
awards shall be filled with regional trial court in enforced as a foreign arbitral award and not a
accordance with the rules of procedure to be judgment of a foreign court.
promulgated by the Supreme Court. Said
procedural rules shall provide that the party relying A foreign arbitral award, when confirmed by the
on the award or applying for its enforcement shall regional trial court, shall be enforced as a foreign

Arthur P. Autea
arbitral award and not as a judgment of a foreign

court.
A foreign arbitral award, when confirmed by the

regional trial court, shall be enforced in the same
manner as final and executory decisions of courts
of law of the Philippines. (Sec. 44, ADRA)
A party to a foreign arbitration proceeding may

oppose an application for recognition and
enforcement of the arbitral award in accordance
with the procedural rules to be promulgated by the
Supreme Court only on those grounds enumerated
under Article V of the New York Convention. Any
other ground raised shall be disregarded by the
regional trial court. (Sec. 45, ADRA)
Tuna Processing v. Philippine Kingford (2012)
In the enforcement of a foreign arbitral award, the

rule that bars foreign corporations not licensed to
do business in the Philippines from maintaining a
suit in our courts is not available to the losing party.
When a party enters into a contract containing a
foreign arbitration clause and submits itself to
arbitration, it becomes bound by the contract,
arbitration and the result of the arbitration,
conceding thereby the capacity of the other party to
[1] enter into the contract, [2] participate in the
arbitration and [3] cause the implementation of the
result.

Arthur P. Autea
DOMESTIC INTERNATIONAL FOREIGN

how to enforce petition to confirm petition to recognize and enforce petition to recognize or enforce
award
period of filing At any time after the lapse of 30 At any time from receipt of the award.
days from receipt by the petitioner
of the arbitral award. If a timely petition to set aside an arbitral award is filed, the opposing
party must file therein and in opposition thereto the petition for
recognition and enforcement of the same award within the period for
filing an opposition.
how to Petition to modify or correct.
correct/modify
award See Sec. 25, DAL for grounds.
A petition to correct an arbitral

award may be included as part of
a petition to confirm the arbitral
award or as a petition to confirm
that award.
how to prevent petition to vacate petition to set aside petition to refuse recognition
enforcement
period of filing1 Not later than 30 days from the Within 3 months from the time the Within 3 months from the time the
receipt of the arbitral award. petitioner receives a copy thereof. petitioner receives a copy thereof.
grounds to
prevent 1. Award was procured through 1. A party to the arbitration 1. A party to the arbitration
enforcement corruption, fraud or undue agreement was under some agreement was under some
means incapacity; or the said incapacity; or the said
agreement is not valid under agreement is not valid under
2. Evident partiality in the arbitral the law to which the parties the law to which the parties
tribunal; have subjected it or, failing any have subjected it or, failing any
1
Belated filing of the petition to confirm will not give a new period for the losing party to file a petition to vacate. In other
words, if a petiton to confirm is filed but the period to file a petition to vacate has already lapsed, the subsequent filing of the
former will not renew the latter. (Autea)

Arthur P. Autea
indication thereof, under the indication thereof, under the

3. Arbitral tribunal was guilty of law of the country where the law of the country where the
misconduct or misbehaviour award was made; or award was made; or
that has materially prejudiced
the rights of any party. 2. The party making the 2. The party making the
application was not given application was not given
4. Disqualification of one or more proper notice of the proper notice of the
arbitrators. appointment of an arbitrator or appointment of an arbitrator or
of the arbitral proceedings or of the arbitral proceedings or
5. Tribunal exceeded its powers; was otherwise unable to was otherwise unable to
present his case; or present his case; or
6. No arbitration agreement; or
3. The award deals with a dispute 3. The award deals with a dispute
7. Party to arbitration is judicially not contemplated by or not not contemplated by or not
declared to be incompetent. falling within the terms of the falling within the terms of the
submission to arbitration, or submission to arbitration, or
contains decisions on matters contains decisions on matters
beyond the scope of the beyond the scope of the
submission to arbitration; submission to arbitration;
provided that, if the decisions provided that, if the decisions
on matters submitted to on matters submitted to
arbitration can be separated arbitration can be separated
from those not so submitted, from those not so submitted,
only that part of the award only that part of the award
which contains decisions on which contains decisions on
matters not submitted to matters not submitted to
arbitration may be set aside; or arbitration may be set aside; or
4. The composition of the arbitral 4. The composition of the arbitral

tribunal or the arbitral tribunal or the arbitral
procedure was not in procedure was not in
accordance with the agreement accordance with the
of the parties or, failing such agreement of the parties or,
agreement, was not in failing such agreement, was

Arthur P. Autea
accordance with the law of the not in accordance with the law
country where arbitration took of the country where arbitration
place; or took place; or
5. The subject-matter of the 5. The award has not yet

dispute is not capable of become binding on the
settlement or resolution by parties or has been set aside
arbitration under Philippine law; or suspended by a court of
or the country in which that
award was made;2 or
6. The recognition or enforcement
of the award would be contrary 6. The subject-matter of or
to public policy. resolution by arbitration under
Philippine law; or
7. The recognition or enforcement

of the award would be contrary
to public policy.
2
This paragraph is exclusive to foreign arbitral awards. (Autea)

Arthur P. Autea
(d) In such an adversarial proceeding, the following

MEDIATION persons involved or previously involved in a mediation may
not be compelled to disclose confidential information
The provisions of this Chapter shall cover voluntary obtained during mediation:
mediation, whether ad hoc or institutional, other than court- (1) the parties to the dispute;
annexed. The term "mediation' shall include conciliation. (2) the mediator or mediators;
(Sec. 7, ADRA) (3) the counsel for the parties;
(4) the nonparty participants;
Confidentiality (5) any persons hired or engaged in connection with
the mediation as secretary, stenographer, clerk or
What comes out in mediation is generally confidential. assistant; and
Matters that come out in mediation cannot be subject to (6) any other person who obtains or possesses
discovery measures and are inadmissible in any confidential information by reason of his/her
proceedings. (Autea) profession.
Information obtained through mediation proceedings shall (e) The protections of this Act shall continue to apply even
be subject to the following principles and guidelines: of a mediator is found to have failed to act impartially.
(a) Information obtained through mediation shall be (f) A mediator may not be called to testify to provide
privileged and confidential. information gathered in mediation. A mediator who is
wrongfully subpoenaed shall be reimbursed the full cost of
(b) A party, a mediator, or a nonparty participant may his attorney's fees and related expenses. (Sec. 9, ADRA)
refuse to disclose and may prevent any other person from
disclosing a mediation communication. A privilege arising from the confidentiality of information
may be waived in a record, or orally during a proceeding
(c) Confidential Information shall not be subject to by the mediator and the mediation parties.
discovery and shall be inadmissible if any adversarial
proceeding, whether judicial or quasi-judicial, However, A privilege arising from the confidentiality of information
evidence or information that is otherwise admissible or may likewise be waived by a nonparty participant if the
subject to discovery does not become inadmissible or information is provided by such nonparty participant.
protected from discovery solely by reason of its use in a
mediation. A person who discloses confidential information shall be
precluded from asserting the privilege under Section 9 of
this Chapter to bar disclosure of the rest of the information

Arthur P. Autea
necessary to a complete understanding of the previously a child protection matter is referred to

disclosed information. If a person suffers loss or damages mediation by a court or a public agency
in a judicial proceeding against the person who made the participates in the child protection mediation;
disclosure.
(6) sought or offered to prove or disprove a claim
A person who discloses or makes a representation about a or complaint of professional misconduct or
mediation is preclude from asserting the privilege under malpractice filed against mediator in a
Section 9, to the extent that the communication prejudices proceeding; or
another person in the proceeding and it is necessary for
the person prejudiced to respond to the representation of (7) sought or offered to prove or disprove a claim
disclosure. (Sec. 10, ADRA) of complaint of professional misconduct of
malpractice filed against a party, nonparty
(a) There is no privilege against disclosure under participant, or representative of a party based
Section 9 if mediation communication is: on conduct occurring during a mediation.
(1) in an agreement evidenced by a record (b) There is no privilege under Section 9 if a court
authenticated by all parties to the agreement; or administrative agency, finds, after a hearing in
camera, that the party seeking discovery of the
(2) available to the public or that is made during a proponent of the evidence has shown that the
session of a mediation which is open, or is evidence is not otherwise available, that there is a
required by law to be open, to the public; need for the evidence that substantially outweighs
the interest in protecting confidentiality, and the
(3) a threat or statement of a plan to inflict bodily mediation communication is sought or offered in:
injury or commit a crime of violence;
(1) a court proceeding involving a crime or felony;
(4) internationally used to plan a crime, attempt to or
commit, or commit a crime, or conceal an
ongoing crime or criminal activity; (2) a proceeding to prove a claim or defense that
under the law is sufficient to reform or avoid a
(5) sought or offered to prove or disprove abuse, liability on a contract arising out of the
neglect, abandonment, or exploitation in a mediation.
proceeding in which a public agency is
protecting the interest of an individual protected
by law; but this exception does not apply where

Arthur P. Autea
(c) A mediator may not be compelled to provide (c) If the parties so desire, they may deposit such
evidence of a mediation communication or testify in settlement agreement with the appropriate Clerk of
such proceeding. a Regional Trial Court of the place where one of the
parties resides. Where there is a need to enforce
(d) If a mediation communication is not privileged the settlement agreement, a petition may be filed by
under an exception in subsection (a) or (b), only the any of the parties with the same court, in which
portion of the communication necessary for the case, the court shall proceed summarily to hear the
application of the exception for nondisclosure may petition, in accordance with such rules of procedure
be admitted. The admission of particular evidence as may be promulgated by the Supreme Court.
for the limited purpose of an exception does not
render that evidence, or any other mediation (d) The parties may agree in the settlement
communication, admissible for any other purpose. agreement that the mediator shall become a sole
(Sec. 11, ADRA) arbitrator for the dispute and shall treat the
settlement agreement as an arbitral award which
Mediated Settlement Agreement shall be subject to enforcement under Republic Act
No. 876, otherwise known as the Arbitration Law,
The mediation shall be guided by the following notwithstanding the provisions of Executive Order
operative principles: No. 1008 for mediated dispute outside of the CIAC.
(Sec. 17, ADRA)
(a) A settlement agreement following successful
mediation shall be prepared by the parties with the A mediated settlement agreement (MSA) is a
assistance of their respective counsel, if any, and product of a successful mediation. To enforce the
by the mediator. The parties and their respective MSA The parties may (1) deposit this with the court
counsels shall endeavor to make the terms and or (2) convert this to an arbitral award so that, in the
condition thereof complete and make adequate event of breach, it would be enforced as if there
provisions for the contingency of breach to avoid was an arbitral award. In the latter case, there is no
conflicting interpretations of the agreement. need to deposit the MSA in court. (Autea)
(b) The parties and their respective counsels, if any, Rule 15 of SAR apply to private mediation and
shall sign the settlement agreement. The mediator court-referred mediation. Court-annexed mediation
shall certify that he/she explained the contents of is governed by circulars of the SC. (Autea)
the settlement agreement to the parties in a
language known to them. Any party to a mediation that is not court-annexed
may deposit with the court the written settlement

Arthur P. Autea
agreement, which resulted from that mediation.

(Rule 15.1, SAR) - END OF REVIEWER -
At any time after an agreement is reached, the

written settlement agreement may be deposited.
(Rule 15.2, SAR)
Any of the parties to a mediated settlement

agreement, which was deposited with the Clerk of
Court of the Regional Trial Court, may, upon
breach thereof, file a verified petition with the same
court to enforce said agreement. (Rule 15.5, SAR)
After a summary hearing, if the court finds that the

agreement is a valid mediated settlement
agreement, that there is no merit in any of the
affirmative or negative defenses raised, and the
respondent has breached that agreement, in whole
or in part, the court shall order the enforcement
thereof; otherwise, it shall dismiss the petition.
(Rule 5.18, SAR)
Court-Annexed vs. Court-Referred
"COURT-ANNEXED MEDIATION" means any

mediation process conducted under the auspices of
the court, after such court has acquired jurisdiction
of the dispute. (Sec. 3(l), ADRA)
"COURT-REFERRED MEDIATION" means

mediation ordered by a court to be conducted in
accordance with the Agreement of the Parties when
as action is prematurely commenced in violation of
such agreement. (Sec. 3(m), ADRA)

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ALTERNATIVE DISPUTE RESOLUTION (ADR)

 2004 – Alternative Dispute Resolution Act

History of ADR This law is covers both domestic and

 1985 – UNCITRAL Model Law (Model Law) Examples of ADR

© APB (Alvaera & Esguerra) DLSU LAW 1

Also, arbitration is confidential unless there is a "MINI-TRIAL" means a structured dispute

"MEDIATION" means a voluntary process in which Party Autonomy

© Lex Societas (Alvaera & Esguerra) DLSU LAW 2

on the arbitrator. their official duties, unless there is a clear showing

The ADR providers and practitioners [shall not be Arbitral Award

© Lex Societas (Alvaera & Esguerra) DLSU LAW 3

international, Model have their own rules

2) join an organization with its own rules saying

3) step into the shoes of a predecessor who was

Ad Hoc vs. Institutional Arbitration

© Lex Societas (Alvaera & Esguerra) DLSU LAW 4

resolve a dispute by rendering an award. (Sec.

Arbitration Agreement vs. Submission The elements of arbitration, as enumerated by Sec.

ARBITRATION SUBMISSION 1) one or more arbitrators;

© Lex Societas (Alvaera & Esguerra) DLSU LAW 5

© Lex Societas (Alvaera & Esguerra) DLSU LAW 6

an arbitration clause, a party can unilaterally

b) One of the following

© Lex Societas (Alvaera & Esguerra) DLSU LAW 7

To determine whether the arbitration is domestic,

© Lex Societas (Alvaera & Esguerra) DLSU LAW 8

The requirement that an arbitration agreement be in writing

d) it is contained in a document containing an

© Lex Societas (Alvaera & Esguerra) DLSU LAW 9

arbitration and that is exactly the situation that the

Gonzales v. Climax Mining (2007)

The doctrine of separability enunciates that an arbitration

Commentary: Applying the Gonzales ruling, an arbitration

© Lex Societas (Alvaera & Esguerra) DLSU LAW 10

Court of First Instance having jurisdiction over the parties,

© Lex Societas (Alvaera & Esguerra) DLSU LAW 11

that such arbitration proceed in the manner provided for in

© Lex Societas (Alvaera & Esguerra) DLSU LAW 12

© Lex Societas (Alvaera & Esguerra) DLSU LAW 13

If the arbitral tribunal renders a final arbitral award

b) In all instances where arbitration is ad hoc

© Lex Societas (Alvaera & Esguerra) DLSU LAW 14

it is unclear if the arbitration is institutional or

© Lex Societas (Alvaera & Esguerra) DLSU LAW 15

© Lex Societas (Alvaera & Esguerra) DLSU LAW 16

© Lex Societas (Alvaera & Esguerra) DLSU LAW 17

not successful, the aggrieved party may request the

© Lex Societas (Alvaera & Esguerra) DLSU LAW 18

© Lex Societas (Alvaera & Esguerra) DLSU LAW 19

that arbitrator. (Rule 8.2, SAR)

© Lex Societas (Alvaera & Esguerra) DLSU LAW 20

the arbitral tribunal rules as a preliminary question

© Lex Societas (Alvaera & Esguerra) DLSU LAW 21

Arbitration Proceedings The parties are free to agree on the place of

© Lex Societas (Alvaera & Esguerra) DLSU LAW 22

© Lex Societas (Alvaera & Esguerra) DLSU LAW 23

© Lex Societas (Alvaera & Esguerra) DLSU LAW 24

© Lex Societas (Alvaera & Esguerra) DLSU LAW 25

© Lex Societas (Alvaera & Esguerra) DLSU LAW 26

© Lex Societas (Alvaera & Esguerra) DLSU LAW 27

The arbitration proceedings, including the records,

© Lex Societas (Alvaera & Esguerra) DLSU LAW 28

A party may request a protective order at anytime

If there is a pending court proceeding in which the