IBA GUIDELINES ON CONFLICTS OF INTEREST IN
INTERNATIONAL ARBITRATION (RED LIST, ORANGE LIST
ORANGE LIST, GREEN LIST)
RED LIST
 include circumstances where, from the
perspective of a reasonable third person,
having knowledge of the relevant facts and
circumstances, conflict of interest exists
 Two kinds: waivable and non-waivable
Waivable Red List
 Include less severe circumstances such that
they may be waived if and when the parties,
being aware of the conflict of interest
situation, expressly state their willingness to
have such a person act as arbitrator
 Examples:
o Relationship of the arbitrator to the
dispute
o Arbitrator's direct or indirect interest in
the dispute
o Arbitrator's relationship with the
parties or counsel
Non-waivable Red List
 includes situations that cannot be cured as it is
derived from the principle that no person can
be his or her own judge
 Examples:
o identity between a party and the
arbitrator, or the arbitrator is a legal
representative or employee of an
entity that is a party in the arbitration
o arbitrator is a manager, director or
member of the supervisory board, or
has a controlling influence on one of
the parties or an entity that has a direct
economic interest in the award to be
rendered in the arbitration
o arbitrator has a significant financial or
personal interest in one of the parties,
or the outcome of the case
o arbitrator or his or her firm regularly
advises the party, or an affiliate of the
party, and the arbitrator or his or her
firm derives significant financial income
therefrom.
 includes situations, which in the eyes of the
parties, give rise to doubts as lo the
arbitrator's impartiality or independence and
should be disclosed to all involved
 IF NO OBJECTION WAS TIMELY FILED AFTER
DISCOVERY OF FACTS >>> PARTIES ARE
DEEMED TO HAVE ACCEPTED THE CONFLICT
OF INTEREST
 Examples:
o Previous services for one of the parties
or other involvement in the case
o Current services for one of the parties
o Relationship between an arbitrator and
another arbitrator or counsel
o Relationship between arbitrator and
party and others involved in the
arbitration
o Other circumstances
GREEN LIST
 this category includes circumstances where
there is no actual conflict of interest from an
objective point of view which need not be
disclosed
 Examples:
o Previously expressed legal opinions
o Current services for one of the parties
o Contacts with another arbitrator, or
with counsel for one of the parties
o Contacts between the arbitrator and
one of the parties
o The arbitrator has a relationship with
one of the parties or its affiliates
through a social media network
IBA GUIDELINES ON PARTY REPRESENTATION IN
INTERNATIONAL ARBITRATION
 PARTY REPRESENTATION
o Party representatives should identify
themselves to the other party/parties
and the Tribunal at the earliest
opportunity
o Party representative should not:
 Engage in ex parte
communications with an
 arbitrator concerning the
arbitration
 Knowingly make false
submission to the tribunal
 Make any Request to Produce
or any objection to a Request to
Produce for an improper
purpose, such as to harass or
cause unnecessary delay
o A party representative should:
 explain to the Party whom he or
she represents the necessity of
producing, and potential conse-
Quences of failing to produce
any Document that the Party or
Parties have undertaken, or
been ordered to produce
o If the Arbitral Tirbunal (AT) finds that a
party representative has committed
misconduct, the AT may:
 admonish the Party
Representative;
 draw appropriate inferences in
assessing the evidence relied
upon, or the legal arguments
advanced by the Party
Representative;
 consider the Party
Representative's misconduct in
apportioning the costs of the
arbitration, indicating if
appropriate, how and in what
amount the Party
Representative's misconduct
leads the Tribunal to a different
apportionment of costs; and
 take any other appropriate
measure in order to pre- serve
the fairness and integrity of the
proceedings
APPOINTING AUTHORITY
 defined as the person or institution named in
the arbitration agreement as the appointing
authority; or the regular arbitration institution
under whose rules the arbitration is agreed to
be conducted
 Ad hoc arbitration - default appointment of an
arbitrator shall be made by the National
President of the Integrated Bar of the
Philippines (IBP) or his duly authorized
representative
IBP GUIDELINES FOR APPOINTMENT OF
AN ARBITRATOR
The IBP Guidelines shall apply to ad h o arbitrations
in respect of the following:
 In relation to Sec. 26 of the ADR Act where
"the default appointment of an arbitrator shall
be made by the National President of the
Integrated Bar of the Philippines or his duly
authorized representative";
 The resolution of a challenge to the
appointment of an Arbitrator, if a Challenge
under any procedure in an arbitration
agreement agreed upon by the Parties or
under the procedure in Art. 13(3) of the 1985
UN- CITRAL Model Law is not successful;
 The resolution of any controversy concerning
the termination of the mandate of a n
Arbitrator under Art. 1411 of the 1985
UNCITRAL Model Law, fi an Arbitrator
becomes de jure or de facto unable to perform
his functions, or for other reasons fails to act
without undue delay, and the arbitrator
concerned refuses to withdraw or the parties
fail to agree on the termination of his mandate
 The replacement of an Arbitrator whose
mandate has been terminated.
In addition, the Guidelines shall specifically
govern the following cases as they may arise in
ad hoc arbitration:
1. Where the parties have not agreed on a
procedure for appointing the Arbitrator or
Arbitrators:
 Arbitration with three Arbitrators - each
party shall appoint one Arbitrator, and
the two Arbitrators thus appointed shall
appoint the third Arbitrator; if a party
fails to appoint an Arbitrator within
thirty (30) days of receipt of a request
 administrators fail to agree on the third
Arbitrator within thirty (30) days of their
appointment, the appointment shall be
made, upon request of a party, by the
National President.
 Arbitration with a sole Arbitrator - if the
parties are unable to agree on the
Arbitrator, he shall be appointed, upon
request of a party, by the National
President
2. Where, under an appointment procedure in
an Arbitration Agreement agreed upon by
the Parties:
 A Party fails to act as required under
such procedure;
 The Parties, or the two Arbitrators, are
unable to reach an agreement expected
of them under
such procedure; or
 A third Party, including an Arbitral
Institution, fails to perform any function
entrusted to it under such procedure
3. If a challenge under any procedure in an
Arbitration Agreement agreed upon by the
Parties or u n d e r the procedure in Art.
13(2) of the 1985 UNCITRAL Model Law is
not successful, the challenging Party may re-
quest, within thirty (30) days after having
received
4. Any Party may request the National
President to decide any controversy
concerning the termination of the mandate
of an Arbitrator, if an Arbitrator be- comes
de jure or de facto unable to perform his
functions, or for other reasons fails to act
without undue delay, and the Arbitrator
concerned refuses to with. draw or the
parties fail to agree on the termination of his
mandate.
5. Any Party may request the National
President to replace an Arbitrator whose
mandate has terminated.
For the Appointment of Arbitrators, the Guideline
provides the following:
 Any Party who submits a request to the
National President for the appointment of an
Arbitrator under Article 1.2 (a) or (b) m u s t
file a request, in substantially the same form
as Schedule "A." with the National President,
and pay the corresponding fee provided in
Schedule"
 The request shall contain the following:
o The names, addresses and other
contact details of the Parties and their
representatives and counsels (if
available);
o A copy of the Arbitration agreement
and other basis, if any, upon which the
appointment of the Arbitrator by the
National President is sought;
o A description of the actions taken by
the Parties or a Party to commence the
arbitration and a copy of the demand,
re- quest or notice of arbitration sent
to the other Parties or Party;
o The general nature and summary of the
dispute;
o Any agreement or lack of agreement as
to the number of Arbitrators;
o The qualifications or disqualifications of
the Arbitrator/s agreed upon by the
Parties;
o A description of the efforts taken by
the Parties or a Party towards the
appointment of an Arbitrator, the
names and contact details, including
the curricula vitae (if available), of the
Arbitrator/s al- ready appointed, the
acceptance of the appointment by the
appointed Arbitratorr/s;
o If the Parties agreed on an
appointment
o procedure, a description of that
procedure with reference to the
agreement where such may be found;
o Proof of service on the other Party and
Arbitrator/s already appointed of the
request for appointment; and
o Information about arbitrator's fees
where there is an agreement between
the Parties with respect thereto.
 Upon receipt of a request:
o The National President shall provide
the other Party or Parties a copy of the
 request and shall invite said Party or
Parties to comment on the request
within seven (7) days from receipt.
Upon receipt of the comment, the
National President shall immediately
resolve the request in accordance with
Article 2.3.7 hereof
o A Party, upon whom a copy of the
request is communicated, may, within
seven (7) days of its receipt, file with
the National President his obiection/s
to the request or ask for an extension
of time, not exceeding thirty (30) days
from receipt of the request, to appoint
an Arbitrator or act in accordance with
the procedure agreed upon by the
Parties or provided by law. Within the
aforementioned periods, the Party
seeking the extension shall provide the
National President and the other Party
or Parties with a copy of the
appointment of his/her Arbitrator, the
latter's curriculum vitae, and the
latter's acceptance of the appointment.
In the event that the said Party fails to
appoint an Arbitrator within said
period, the National President shall
proceed to make the default
appointment.
o If the default appointment of an
Arbitrator is obiected to by a Party on
whose behalf the default appointment
is to be made, and the defaulting Party
requests the National President for
additional time to appoint his/her
arbitrator, the National President,
having regard to the circumstances,
may give the requesting party not more
than 30 days to make the appointment.
If the objection of a Party is based on
the ground that the Party did not fail to
choose and appoint an Arbitrator for
the Arbitral Tribunal, there shall be
attached to the objection the
appointment of an Arbitrator together
with the latter's acceptance thereof
and curriculum vitae. Otherwise, the
National President shall appoint the
Arbitrator for that Party.
o The National President shall inform the
prospective Arbitrator-appointee of his
possible appointment and request the
prospective Arbitrator-appointee to
confirm, within seven (7) days from
notice, his availability to act as the
Arbitrator.
o The appointed Arbitrator must make a
full declaration of independence,
impartiality and availability, and
disclose to the Parties and the National
President, any fact, cir- cumstance, or
relationship which could give rise to
justifiable doubts about his or her in-
dependence and impartiality, by
signing a Declaration of Acceptance
and Statement of Independence in
substantially the same form as
Schedule "B"
o If the prospective Arbitrator-appointee
accepts the nomination, the National
President shall immediately inform the
Parties a n d the other Arbitrator/s, if
any of his appointment. If the
prospective Arbitrator-appointee is
unable to accept, the National
President shall proceed to consider the
appointment of another Arbitrator in
an expeditious manner.
o The National President shall endeavor
to complete the requested
appointment within thirty (30) days
from receipt of the request.
o The National President shall give the
parties written notice of the
appointment made or its inability to
comply with the request and the
reasons why it is unable to do so. If
war- ranted under the circumstances,
the National President may direct the
requesting Party to provide additional
information or documents, deny the
request for failure to satisfy the
requirements, or direct the Party or
Parties to take such other steps as may
be appropriate.
 In Domestic Arbitrations, the National President
shall observe the following:
o In making an appointment for a sole
arbitrator, the Appointing Authority
shall summon the parties and their
respective counsels, if indicated, to
appear before said authority on the
date, time and place set by it; for the
purpose of selecting and appointing a
sole arbitrator. If a sole Arbitrator is not
ap- pointed in such meeting, or the
meeting does not take place because of
the absence of either or both parties
despite due notice, the Appointing
Authority shall appoint the sole
arbitrator in accordance with these
Guidelines.
o In making a default appointment, the
Ap- pointing Authority shall have regard
to such considerations as are likely to
secure the appointment of an
independent and impartial Arbitrator. In
order to achieve speedy and impartial
justice and to moderate the cost of
Arbitration, in choosing an Arbitrator,
the Appointing Authority shall give
preference to a qualified person who
has a place of residence or business in
the same general locality as the agreed
venue of the Arbitration and who is
likely to accept the Arbitrator's fees
agreed upon by the parties, or as fixed
in accordance either with the internal
guidelines or the Schedule of Fees
approved by the administering
institution or by the Appointing
Authority.
o Any clause giving one of the parties the
power to choose more Arbitrators than
the other is void. However, the rest of
the agreement, fi otherwise valid, shall
be construed as permitting the
appointment of one (1) Arbitrator by all
claimants a n d one (1) Arbitrator by all
respondents. The third Arbitrator shall
be appointed as provided above. If all
the claimants or all the respondents
cannot decide among themselves on an
Arbitrator, the appointment shall be
made for them by the National
President.
o An Arbitrator, in accepting an
appointment, shall include, in his / h e r
acceptance letter, a statement that:
 He/she agrees to comply with
the applicable law, the
Arbitration rules agreed upon by
the parties, or in de- fault
thereof, these Rules, a n d the
Code of Ethics for Arbitrators in
Domestic Arbitration, fi any;
 He/she accepts as compensation
the Arbitrator's fees agreed
upon by the parties or as
determined in accordance with
the rules agreed upon by the
parties; and
 He agrees to devote as much
time and attention to the
arbitration a s the circumstances
may require in order to achieve
the objective of a speedy,
effective and fair resolution of
the dispute.
 In International Arbitrations, the National
President shall likewise be guided by the
provisions of Article 2.4 hereof.
 The order issued pursuant to this Article shall
not be the subject of a motion for
reconsideration "
APPOINTMENT OF ARBITRATORS
 The parties are free to agree on a procedure of
appointing the arbitrator or arbitrators.
 If, in the contract for arbitration or in the
submission, a provision is made for a method
of appointing an arbitrator or arbitrators, such
method shall be followed
 In the absence of any agreement (see page 2-
3; nos 1 and 2)
REQUEST FOR APPOINTMENT
refers to the letter-request to the appointing
authority of either or both parties for the
appointment of arbitrators or of the two
arbitrators first appointed by the parties for the
appointment of the third member of an arbitral
tribunal.

CHALLENGING THE APPOINTMENT
Grounds Under ICA:
 If circumstances exist that give rise to
justifiable doubts as to his/her impartiality or
independence; or
 If he/she does not possess qualifications
agreed to by the parties; or
 A party may challenge an arbitrator appointed
by him/her, or in whose appointment he/she
has participated, only for reasons of which
he/she becomes aware after the appointment
has been made.
Domestic Arbitration
in addition to the grounds mentioned above, the
arbitrator may be challenged if he refuses to
respond to questions by a party regarding the
nature and extent of his professional dealings with
a party or its counsel.
ARBITRATOR'S FAILURE OR IMPOSSIBILITY TO ACT
 If an arbitrator becomes de jure or de facto
unable to perform his/her functions or for
other reasons fails to act without undue
delay, his / her mandate terminates if he/she
withdraws from his/her office or if the par-
ties agree on the termination. Otherwise, if a
controversy remains concerning any of these
grounds, any party may request the
appointing authority to decide on the
termination of the mandate, which decision
shall be immediately executory and not
subject to appeal or motion for
reconsideration.
 If, under the Challenge Procedure, an
arbitrator withdraws from his/her office or a
party agrees to the termination of the
mandate of an arbitrator, this does not imply
acceptance of the validity of any ground as
outlined in the Grounds for Challenge.
APPOINTMENT OF EMERGENCY ARBITRATOR
 Not mentioned in RA 9285 and its IRR
 In arbitral institutions in the Philippines, this
is included in their Rules of Procedure , in
order to address temporary urgent relief
needed by the parties prior to the
constitution of the Arbitral Tribunal
 ICC Arbitration Rules:
o a party that needs urgent interim
measures ("Emergency Measures
"that cannot await the constitution of
an arbitral tribunal may make an
application to the Secretariat of the
ICC International Court of Arbitration
("Secretariat").
o APPLY ONLY TO PARTY SIGNATORIES
o Does not apply:
 the arbitration agreement
under the ICC Rules was
concluded before 1 January
2012;
 the parties have opted out of
the Emergency Arbitrator
Provisions (see the Standard
ICC Arbitration Clauses); or
 the parties have agreed to
another pre-arbitral
procedure that provides for
the granting of conservatory,
interim or similar measures
APPOINTMENT OF SUBSTITUTE ARBITRATOR
A substitute arbitrator shall be appointed under
applicable rules when the mandate of an arbitrator
terminates under the following circumstances:
 Challenge Procedure
 Failure or Impossibility to Act
 Withdrawal from office for a n other reason
or be- cause of the revocation of his
mandate by agreement of the parties or in
any other case of termination of his /her
mandate
JURISDICTION OF ARBITRAL TRIBUNAL
On the governing provisions on Competence to
rule:
 The arbitral tribunal may rule on its own
jurisdiction, including any objections with
respect to the existence or validity of the
 arbitration agreement or any condition
precedent to the filing of a request for
arbitration. For that purpose, an arbitration
clause, which forms part of a contract shall
be treated as an agreement independent of
the other terms of the contract. A decision
by the arbitral tribunal that the contract is
null and void shall not entail ipso jure the
invalidity of the arbitration clause.
 A plea that the arbitral tribunal does not
have jurisdiction shall be raised not later
than the submission of the statement of
defense (i.e., in an Answer or Motion to
Dismiss). A party is not precluded from
raising such a plea by the fact that he/she
has appointed, or participated in the
appointment of, an arbitrator. A plea that
the arbitral tribunal is exceeding the scope
of its authority shall be raised as soon as the
matter alleged to be beyond the scope of its
authority is raised during the arbitral
proceedings. The arbitral tribunal may, in
either case, admit a later plea if it considers
the delay justified.
 The arbitral tribunal may rule on a plea
referred to in paragraph (b) of this Article
either as a preliminary question or in an
award on the merits. If the arbitral tribunal
rules as a preliminary question that it has
jurisdiction, any party may request, within
thirty (30) days after having received notice
of that ruling, the Regional Trial Court to
decide the matter, which decision shall be
immediately executory and not subject to
motion for reconsideration or appeal. While
such a request is pending, the arbitral
tribunal may continue the arbitral
proceedings and make an award.
PLACE OF ARBITRATION
 Parties are free to agree on the place of
arbitration
 Failing such agreement - Metro Manila,
o Unless the arbitral tribunal, having
regard to the circumstances of the
case, including the convenience of
the parties, shall decide on a different
place of arbitration
 The Arbitral Tribunal may, unless otherwise
agreed by the parties, meet at any place it
considers appropriate for consultation
among its members, for hearing witnesses,
experts or the parties, or for inspection of
goods, other property or documents.
RULES OF PROCEDURE IN ARBITRAL PROCEEDINGS
 Parties are free to agree on the procedure
to be followed by the arbitral tribunal
 Under International Court of Arbitration
(ICA),
o the arbitral tribunal may, lacking
agreement between parties, conduct
the arbitration in such manner as it
considers appropriate
o The UNCITRAL Arbitration rules shall
apply, unless the arbitral tribunal
considers it inappropriate
 The application shall have
the following clarification: All
references to the Secretary
General of the Permanent
Court of Arbitration at The
Hague shall be deemed to
refer to the appointing
authority
 Under Domestic Arbitration:
o The arbitral tribunal may conduct the
arbitration in such manner as it
considers appropriate -- this is when
the parties failed to come to an
agreement; also subject to the
provisions of the ADR act.
NOTE: Powers conferred upon the arbitral tribunal
includes the power to determine admissibility,
relevance, materiality, and weight of evidence.
CONFIDENTIALITY OF ARBITRATION PROCEEDINGS
 The proceeding, including the records,
evidence, and award, and other confidential
information shall considered privileged and
confidential and shall not be published
except:
 o With consent of the parties; or
o For the limited purpose of disclosing
to the court relevant documents in
cases where resort to the court is
allowed herein
o The court in which the action or the
appeal is pending may issue a
protective order to prevent or
prohibit disclosure of documents or
information containing secret
processes, developments, research
and other information where it is
shown that the applicant shall be
materially prejudiced by an
authorized disclosure thereof.
LEGAL REPRESENTATION
 For both Domestic Arbitration in PH and
International Commercial Arbitration - party
may be represented by any person of
his/her choice
o Provided, that such representative -
unless
 admitted to the practice of
law in the Philippines shall
not be authorized to appear
as counsel in any PH court or
any other quasi-judicial body
whether or such appearance
is in relation to the
arbitration in which he/she
appears.
NOTE:
 No arbitrator shall act as mediator in any
proceeding in which he/she is acting as
arbitrator.
 All negotiations towards settlement of
dispute must take place without the
presence of the arbitrators
COMMENCEMENT OF ARBITRAL PROCEEDINGS
● Reckoning point of commencement depends on
the nature and intended arbitration agreement of
the parties.
● For International Commercial Arbitration (ICA)
arbitration commences on the date when a request
for that dispute to be referred to arbitration is
received by the respondent, unless otherwise
agreed by the parties.
 For Domestic Arbitration:
o Institutional Arbitration - based on the
arbitration rules of the institution
agreed upon
o Ad hoc Arbitration - upon the delivery
of the demand for arbitration to the
respondent
 When no prior arbitration agreement exists,
arbitration is initiated when one party submits
the case for arbitration.
o It is considered commenced when the
other party agrees to the submission of
the dispute to arbitration
o In this case, the demand shall require
the respondent to name his/her
arbitrator within a period
 Period - not less than 15 days
from receipt of demand,
extendible upon agreement by
parties
o Within the period, the respondent shall
give a written notice to the claimant of
the appointment of respondent’s
arbitrator and attach to the notice the
arbitrator’s CV and acceptance of
appointment.
NOTE: If there is an agreement to appoint a sole
arbitrator:
 The demand shall include an invitation of the
claimant to the respondent to meet and
agree upon such arbitrator not less than 30
days from receipt of demand
If the agreement provides for establishment of
arbitral tribunal
 The demand shall name the arbitrator
appointed by the claimant
Oath of the Arbitrators
 Before assuming the duties of his/her office,
arbitrator must be:
o sworn by any officer authorized by law
to administer an oath or
o be required to make an affirmation to
faithfully and fairly hear and examine
the matters in controversy and to
make a just award to the best of
his/her ability and understanding
 A copy of the oath or affirmation shall be
furnished to each party of the arbitration