ALTERNATIVE DISPUTE RESOLUTION ACT OF 2004 (R.A. NO 9285) vitae 4 . In an effort to deciog the courts’ of an increasing volume of work load and, most importantly, in order to accord contending parties with: expeditious allernatives for settling disputes; the law authorizes, indeed encourages, oul of court settlements or adjudications (La Naval Drug Com. v. CA, GR. No.103200, August 31, 1994), Policy 1. To actively promote party autonomy in the resolution of disputes or the freedom of the parties to make their own arrangements to resolve their disputes; 2. To encourage and actively promote the use of Alternative Dispute Resolution “ADR” as an important. means to achieve speedy and impartial justice and declog court dockets; 3. To provide means for the use of ADR as an efficient tool and an alternative procedure for the resolution of appropriate cases; 4, Toenlist active private sector participation in the settlement of disputes through ADR (RA 9285, Sec. 2). LTERNATIVE DISPUTE RESOLUTION SYSTEM It is any process or procedure used to resolve & dispute or controversy. other than by adjudication of presiding judge of a court or an officer of @ goverment agency, in which 2 neutral third party pailicipates {0 assist in the resolution of issues, Which includes: (AMC-EMC) Arbitration; Mediation; Conciliation; Early neutral evaluation; Mini-trial; of ‘Any Gombination thereof (RA 9285, Sec. 3(a)).. OAeaena J rineies of Alternative Dispute Resolution Promotion of party autonomy and self- determination in the resolution of disputes; 2, Recognition of ADR as an efficient tool and an alternative procedure for the resolution of cases; and 3:' Enlisting » of private sector participation (ROBENIOL, Allernative Dispute Resolution (2020), pp.11-12 [hereinafter ROBENIOL)). ‘Koes of ADR 1. ADR is a'means used to resolve a dispute-or controversy; ~* ADR utilizes neans and methods allowed by law; ADR is contractual in nature; ADR avoids court trial; and ADR usually involves the participation of a neutral third party (ROBENIOL, supra at 12-15) gaeo » sefvantages of ADR Law (SNAPE) ‘Swifl resolution of vispute; Non-adversarial nature of the proceeding: Economy of cost; ‘Autonomy of the party-litigants in the choice of Tules and law to govern the dispute resolution process; and 5. Privacy of the proceeding (AQUINO & FLORES, Alternative Dispute Resolution (2004), p. xxvi) Z [hereinatter AQUINO)). Disadvantage of ADR Law Absence of any precedence tal would guide the arbitrator or mediator since the cases brought before it are through agreement of parties and not bound by any previous rulings (Jd. at xxvii), Z sources of ADR Rules: (DAIG) 1. Domestic laws and rules (may either be general or special), 2. Decisions of the Supreme Court; 3. Acts of the Executive Branch; 4. International Laws; and 5. General principles of law and equlty (id. at 15)./Non-Applicabitty of ADR Law The provisions of R.A. No. 9285 shall not apply to resolution or settlement of the following: (LaCiv- LoJ-FC?) 1. Labor disputes covered by P.D. 442 or the Labor Code, as amended, and its Implementing Rules and Regulations; Note: A labor dispute includes any controversy ‘or matter concerning terms and conditions of employment or the association or representation of the persons in negotiating, fixing, maintaining, changing or arranging the terms and conditions of employment, regardless of whether the disputants stand in the proximate relation of employer and employee (P.D, 442, Art. 219()) The Givil status of persons; The Validity of marriage; Any ground for Legal separation; The Jurisdiction of courts; Future legitime; Criminal liability; Those which by law Cannot be compromised (e.g. future support) (Sec. 6). COMPONENTS OF ADR ZO 1. Contending Parties —who are involved in a dispute or controversy, SNOnSON 2. Dispute or Controversy — which is susceptible of being subjected to ADR; 3. Form of ADR — (as discussed below) 4. ADR Provider or Practitioner (AQUINO, supra at 19-20). a. ADR Provider — ‘refers to institutions or persons accredited as mediator, _conciliator, arbitrator, neutral evaluator, or any person exercising similar functions in any Alternative Dispute Resolution system. This is without prejudice to the rights of the parties to choose non-accredited individuals to act as mediator, conciliator, arbitrator, or neutral evaluator of their dispute (RA 9285, Sec. 3(6)). b, ADR Practitioner — refers to an individual acting as a mediator, conciliator, arbitrator or neutral evaluator (RA 9285, Sec. 3(b)). FORMS OF ALTERNATIVE DISPUTE RESOLUTION UNDER ADR LAW 1. Mediation — (discussed below); 2. Arbitration — (discussed below), 3. Conciliation — The adjustment and settlement of dispute in a friendly and unantagonistic manner. Itis used in courts before trial with a view towards avoiding trial (Black's Law Dictionary 6 edition); 4. Referral of dispute to other alternative dispute resolution forms such as but not limited to: a. Early Neutral Evaluation — An ADR process wherein parties and their lawyers are brought together early in a pre-trial phase to present summaries of their cases and receive a — nonbinding assessment by an experienced, neutral person, with expertise in the subject in the substance of the dispute (RA 9285, Sec Sates, SOP b. Mini-trial — A structured dispute resolution method in which’ the merits of the case are argued before a panel comprising of senior decision makers with or without the presence of a “n@utrat third’person after which the parties seek ahegotiated settlement (Sec. 3(u)); =¢. Mediation-arbitration or Med-Arb ‘A two-step dispute resolution process involving both mediation and arbitration (RA 9285, Sec 3(t)); and d. A combination thereof (RA 9285, Sec 18). EXCLUDED FROM THE COVERAGE OF ADR ACT 1. Court-Annexed Mediation — is any mediation process conducted under the auspiccs of the court, after such court has acquired jurisdiction of the dispute (RA 9285, Sec. 3())); 2. Conciliation conducted by the Lupong Tagapamayapa and = Pangkat ng Tagapagkasundo under Chapter 7, Book Ili of R.A. No. 7160; 3. Judicial Dispute Resolution (JDR) (ROBENIOL, supra at 28-29).NOTE: This does not, however, exclude court- annexed mediation and JOR as methods of ADR, except that, they are not govemed by the ADR Act of 2004 (ROBENIOL, supra at 29). ‘ence for ADR The Supreme Court In the case of Koppel, Inc. v. Makati Rotary Club Foundation Inc., (G.R. No. 198075, September 4, 2013) made a clear and categorical declaration that judicial proceedings disregarding arbitration agreements, beyond the point when the parties should have been referred to arbitration, are null and void, and the decisions rendered therein shall be reversed and set aside in order to allow the remand of the case to the trial court and the referral of the dispute to arbitration in accordance with the arbitration agreement. Office for Alternative Dispute Resolution The Office for Alternative Dispute Resolution - (CADR), which is attached to the Departnient of Justice, was’ created under the R. ADR Act of 2004 for the following purpoges! —_,.»« 1, To maximize the benefits of ADR;,and 2 To ensure the smooth, apd) effectiie implementation of the proyisionsiof'the ADR Act of 2004 and its IRR, and» RA No. 876 (RYBENIOL, supra at 26). cipal Objectives, Powers and Functions of \e Office for Alternative Dispute Resolution: (OADR) shove 4. To promote, develop and pand\thé. use of ADR jin the private and public ‘sectors’ through information, education and communication; To assist the government to monitor, study arid evaluate the use by the ‘public ahd private » sectors of ADR, and recommend to, Congress needful statutory changes “to ‘develop, strengthen and improve ADR practices: in accordance with world standards; 3. Toact as appointing authority of mediators when the parties agree in writing that it shall be empowered to do so; and 4. To compile and publish a list or roster of ADR providers/practitioners, and to compile a list or roster of foreign or international ADR providers/practitioners (ROBENIOL, supra at 2n, AEDINTION iis a voluntary process in which a mediator, selected by the disputing parties, facililates communication and negotiation, and assists the parties in reaching a voluntary agreement regarding a dispute (Sec. 3(q)). Scope: The provisions of this chapter shall cover voluntary mediation, whether ad hoc or institutional, No, 9286 or |. other than court-annexed. The term mediation shall include conciliation (Sec. 7) Zerassification of Medi 1. As a Form of ADR: Non-evidentlary or non-merit based — mediation focuses on the facilitation of communication and negotiation between the parties in order to encourage them to voluntarily settle their dispute and docs not take into account the merits of the case (ROBENIOL, supra at 29) in 2. On the basis of the structure of the ADR provider: a. Institutional — when administered by, and conducted under the rules of a mediation institution; and Ad hoc + if itis other than institutional (/d.). b: Arace ot teldiation The parties are‘ free to agree on the place of mediation. Failing such agreement, the place of mediation shall be any place convenient and appropriate to all parties (RA 9285, Soc. 15). NOTE: The venue-for the mediation process is ‘subject to the agreerient of both parties (RA 9285, - 75). ‘Stages in Mediation In.ganeral, the madiation process consists of the Tollowing stages: 4: Opéning statement of the Mediator; 2° Individual narration by the parties; J.“ Eichange by the parties: 4: Summary of issues; 5. Generalization and evaluation of options; and 6. Closure (ROBENIOL, supra at 30). NOTE: The foregoing process is not obligatory and the parties may choose the procedure that will govern their mediation (Id). Advantages of Mediation 1. Confidentiality in the mediation process; 2. Prompt, economical.and amicable resolution of disputes; and 3. The decision-making authority rests in the parties (ROBENIOL, supra at 31), Application and Interpretation In construing the provisions regarding mediation, consideration must be given to the need to promote candor or parties and mediators through confidentiality of the mediation process, the policy offostering prompt, economical, and amicable resolution of disputes in accordance with the principles of integrity of determination by the parties, and the policy that the decision-making authority in the mediation process rests with the parties (RA 9285, Sec. 8). Intopttion obtained through —_ mediation jceedings shall be subject to the following principles and guidelines: 1. Information obtained through mediation shall be privileged and confidential; 2. A party, a mediator, or a non-party participant may refuse to disclose and may prevent any other person from disclosing a mediation communication; 3, Confidential Information shail 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 discovery solely by reason of its use in mediation; 4. In such adversarial proceeding, the following persons involved or previously involved in a, mediation may not be compelled to disclose confidential information obtained, -duting the mediation: (PaMCoN-HO) The Parties to the dispute; The Mediator or mediators} The Counsel for the parties; ‘The Non-party participants; Any persons Hired or engaged in connection with the mediation “as. secretary, stenographer, clerk or assistant; {. Any other person who Obtains or possesses confidential information by reason of his/her profession; and 5. The protection of R.A. 9285 shall continue to apply even if a mediator is found to have failed to act impartially; and 6. A mediator may not be called to testify to provide information gathered in mediation (RA 9285, Sec. 9). earn Waiver of Confidentiality A. privilege arising from the confidentiality of information may be waived in a record, or orally during a proceeding by the mediator and the mediation parties. A privilege arising from the confidentiality of information may likewise be waived by a non-party participant if the information is provided by such non- party participant A person who discloses confidential information shall be preciuded from asserting the privilege under Section 9 of R.A. No. 9285 to bar disclosure of the rest of the information necessary to a complete understanding of the previously disclosed information. A person who discloses or makes a representation about mediation is precluded from asserting the privilege under Section 9, to the extent that the communication prejudices another person in the proceeding and it is necessary for the person prejudiced 10 respond to the representation of disclosure (RA 9285, Sec. 10) {ceptions to Privilege: (APT-CAMP) There is no privilege against disclosure under Section 9 if mediation communication is: a. In an Agreement evidenced by a record authenticated by all parties to the agreement; b. Available to the Public or that is made during session of a mediation which is open, or is required by law to be open, to the public; c. A Threat or statement of a plan to inflict bodily injury or commit a crime of violence; d. Intentionally used to plan a Grime, attempt to commit, or commit a crime, or conceal an ‘ongoing crime or criminal activity; ight or offered to prove or disprove Abuse, neglect, abandonment, or exploltation in a proceeding in which a public agency is protecting the interest of an individual: protected by law, but this exception ‘does not apply where a child = 'prolection matter is referred to mediation by ir ora public agency participates in the child protection mediation; f. Sought or offered to prove or disprove a claim or complaint of professional ‘misconduct or malpractice filed against Mediator in a proceeding; or 9. Sought or offered to prove or disprove @ claim or complaint of _ professional misconduct or malpractice filed against a Party, nomparty participant, or representative of a party based on conduct occurring during mediation. > 2, There is no privilege under Section 9, if a court or administrative agency, finds, after a hearing in camera, that the parly seeking discovery of the proponent of the evidence has shown that the evidence is not otherwise available, that there is a néed for the evidence that substantially outweighs the interest in protecting confidentiality, and-—the_~-——mediation communication is sought or offered in: a. A court proceeding involving a crime or felony; or b. A proceeding to prove a claim or defense that under the law is sufficient to reform oravoid a liability on a contract arising out of the mediation 3. A mediator may not be compelled to provide evidence of a mediation communication or testify in such proceeding, 4. Ia mediation communication is not privileged under an exception in subsection (1) of (2), only the portion of the communication necessary for the application of the exception for non- disclosure may be admitted. The admission of particular evidence for the limited purpose of an exception does not render that evidence, or any other mediation communication, admissible for any other purpose (RA 9285, Sec. 11). The Mediator The parties are given the freedom to select their mediator and they may request the OADR to provide them with a list or roster of its certified mediators, and their resumes (Implementing Rules and \ Regulations “of the ADR Act of 2004, Ark 3.3 \ Ihereinafter IRR). ’ y The role of the mediator is very crucial that his presence and competence: must be ensured. (ROBENIOL, supra at 38). If the mediator selected is unable to act as such for any reason, the parties may, upon being informed of such fact. select another mediator (IRR, Art. 3.4). Itis not required that a mediator shall have special qualifications by background: or profession unless the special qualifications of a mediator are required in the mediation agreement or by the mediation parties (IRR, Art. 3.6) Inguaes when a mediator may refuse from acing as such or be compelled’ to withdraw: (ReQ-impEs*coy 1, Ifany of the parties so withdraw; 2, The mediator does not have the Qualifications, training, and experience to enable him to meet the reasonable expectations of the parties; The mediator's Impartiality is in question; The continuation of the process will violate any Ethical standards The Safety of anyone of tie paitios will be jvopardized, 6 Tha mediator is unable to provide elfactive Services; In case of Conflict of interest; and Qthor inciancos provided for under the IRR (RR, Art. 3.5) uests the mediator to be 9 ex hibited Mediator Reports ‘A mediator may not make a report, assessment, evaluation, recommendation, finding, of other communication regarding mediation to a court or agency or other authority that may make a ruling on a dispute that is the subject of mediation (RA 9285, Sea, 12). EXCSPTIONS: 1 fe the mediation occurred or has terminated, or where settlement was reached; 2. As.permitted to be disclosed under Section 13 of R.A. No. 9285 (1d.). Participation in Mediation Except as otherwiso provided in R.A. No. 9285, a party may designate a lawyer or any other person to provide assistance in the mediation. A waiver of this right shall be made in writing by the party waiving it ‘Awaiver of participation or legal representation may be rescinded at any time (RA 9285, Sec. 14). Effect of Agreement to Submit Dispute to Mediation under Institutional Rules ‘The agreement shall include: ‘Ti; AR agteement to be bound by the internal m-,Mmediation*and administrative policies of such . Instifution;’arid ‘2°“An agreement to have such rules govern the mediation of the dispute and for the mediator, the parties, their respective counsel, and non- party participants to abide by such rules. Incase df conflict between the institutional mediation rules add,the provisions of this act, the latter shall provail (RA.9285, Sec. 16). How a Mediation is Closed: (SWW) 1, “By the execution of a Selllement agreement by the parties; 2. - By the Withdrawal of any party from mediation; anid 3. By. the Written declaration of the mediator that any further effort at mediation would not be helpful (ROBENIOL, supra at 31). fiated Settlement Agreement his refers to the concluding document in a successful mediation. It has the effect of ses judicata and is binding upon the parties whether or not it has been submitted to the court for approval, NOTE: There can be no execution of the concluding agreement unless it has first beer judicially approved (ROBENIOL, supra at 41). twas held in the case of Miguel v. Montanez (G.R. No. 191336, January 25, 2042) that an amicable settlement, being a by-product of mutual concessions and good faith of the parties, has the force and effect of res judicata even if not judicially approved. It transcends being a mere contract binding only upon the parties thereto, and is akin toa judgment that is subject of execution in accordance with the Rules. of Mediated —_ Settlement 1. A settlement agreement following successful mediation shall be prepared by the parties with the assistance of their respective counsel, if any, and by the mediator; NOTE: Tho parties and their respective counsels shall endeavor to make the terms and condition thereof complete and make adequate provisions for the contingency of breach to avoid conflicting interpretations of the agreement 2. The parties and their respective counsels, if any, shall sign the settlement agreement. The mediator shall certify that he/she explained the contents of the settlement agreement to the parties in a language known to thes 3. I the parties so desire, they may deposit such settlement agreement with the appropriate Clerk of an RTC of the place where one of the parties resides. Where there is a need to enforce the settlement agreement, a petition may be filed by any of the parties with the same court, in which case, the court shall proceed summarily to hear the petition, in accordance with such rules of procedure as may be promulgated’ by the Supreme Court; and 4, The parties may agree in. the settlement agreement that the mediator shall become a sole arbitrator for the dispute and shall treat the settlement agreement as an arbitral award which shall be subject to enforcement under R.A. No. 876, otherwise known as the Arbitration Law (RA 9285, Sec. 17). ARBITRATION A voluntary dispute resolution process in which one - or more arbitrators, appointed in accordance with the agreement of the parties, or rules promulgated pursuant to R.A. No. 9285, resolve a dispute by rendering an award (RA 9285, Sec. 3(d)). Classifications of Arbitration 1 eneral Classification a. Compulsory Arbitration process of settlement of labor disputes by a government agency which has the authority to investigate and to make an award which is binding on all parties and as a mode of arbitration where the parties are compelled to accept the resolution of their dispute through arbitration by a 3rd party. (Reformist Union v. NLRC, G. R. No. 120482, January 27, 1997); and /oluntary Arbitration proceeds from the mutual consent of both parties usually in pursuance to an agreement prepared beforehand. Where such arbitration is voluntary, the disputing parties are the ones who select the arbitrator or members of the arbitration panel that has the power to render a binding decision (AQUINO, supra at 9). NOTE: ADR Act and its IRR govern voluntary arbitration but not compulsory arbitration (FRA 9264, Sec..3 (d)). 2. BéSed on seat of arbitration and the resence of foreign elements a. International © Commercial or Arbitration — (discussed below), and b. Domestic Arbitration — If the components of parties’ places of business, place of arbitration, place of performance of a substantial part of the obligation, and place where the subject matter of the dispute is most closely connected, are all located in the Philippines (ROBENIOL, supra at 48) (discussed further below). rator + 'e person appointed to render an award, alone or ‘with othéts; in:@ dispute that is the subject of an arbitration agreement (RA 9284, Sec. 3(e)). ition Agreement “thewagreement of the parties to submit to arbitration all or certain disputes which have arisen ‘or which may arise between them in respect of a defined legal relationship, whether contractual or not (IRR, Article 1.6, A(4)). An agreement to arbitrate is a contract, the relation of the parties is contractual, and the rights and liabilities of the parties are controlled by the law of contracts. In an agreement for arbitration, the ordinary elements of a valid contract must appear, including an agreement to arbitrate’ some specific thing, and an agreement to abide by the award, either in express language or by implication (Ormoc. Sugarcane Planters’ Association, Inc. v. Court of Appeals, G.R. No. 156660, August 24, 2009). POLICY ON ARBITRATION Being an inexpensive, speedy and amicable method of settling disputes, arbitration along with mediation, conciliation and negotiation is encouraged by the Supreme Court. Aside from unclogging judicial dockets, arbitration also hastens the resolution ofdisputes, especially of the commercial kind. It is thus regarded as the wave of the future in international civil and commercial disputes. Brushing aside a contractual agreement calling for arbitration between the parties would be a step backward (Korea Technologies Ltd. v. Lemma, G.R. No. 143581, January 7, 2008) Modes of Submitting a Dispute/Controversy to Arbitration There are two modes of submitting a dispute or controversy to arbitration depending on the existence or pendency of the dispute or controversy to be submitted for resolution: a. Agreement to submit to arbitration; or b. Submission agreement (ROBENIOL, supra at 59). Agreement to submit to arbitration it is an agreement to submit to arbitration some fulure dispute usually stipulated upon a civil contract between the parties (R.A. No. 876, Sec. 2), Submission agreement , Itis an agreement to submit ah existing” matter of difference to arbitrators. ARBITRATION AND.MEDIATION, DISTINGUISHED PC tery Oe rt Cremer Ut ity Itis a voluntary dispute | It is a voluntary process resolution process in|in which a mediator, which one or more | solected by the disputing arbitrators, appointed | purlies; facilitates in accordance with the | communication and agreement of the | negotiation, and as ts parties, or rules | the parties in reaching a promulgated pursuant | voluntary agreement to this Act, resolve a} regarding a dispute dispute by rendering | (Sec. 3(q)). ‘an award (Sec. 3(d)). As to Role of Evidence and: Matits.of the Case: Evidence or merit | Non-evidentiary or non- based. merit based CORR Leta a Ciel Cs The arbitrator decides | The parties themselves and renders an arbitral | enter into and execute a award to conclude the | mediated settlement arbitral proceeding. —_| agreement to conclude the mediation proceeding, Doctrine of Separability The docltine of separability, or doctrine of severability, enunciates that an arbitration agreement is independent of the main contract even if it is contained in an arbitration clause. Being a separate contract in itself, the arbitration agreement may thus be invoked regardless of the possible nullity or invalidity of the main contract (Koppel, Inc. v. Makati Rotary Club Foundation Inc., G.R. No. 198075, September 4, 2013). INTERNATIONAL ARBITRATION COMMERCIAL UNCITRAL Model Law The Model Law provides for'a uniformity of law on arbitral procedures. Adopted by the United Nations Commission on International Trade Law on June 21, 1985 (AQUINO, supra at xxiv) Salient Features of ADR Law Applying and Incorporating the UNCITRAL Model Law 1. The RTC must refer to arbitration in proper casés (Sec. 24); 2. Foreign arbitral awards must be confirmed by the RTC: (See. 36); 3. The, RTC has jurisdiction to review foreign arbitral awards (Sec. 42 & 45); 4, Grounds for judicial review in domestic and foreign arbitral awards (Sec. 23 & 25 of RA. 876); and 5. RTC decision of assailed foreign arbitral award appealable (Sec. 46) (Korea Technologies Co., Lid. v. Lerma,’G,R. No, 143581, January 7, 2008) Interpretation of Model Law In interpreting the Model Law, regard shall be had to its international origin and to the need for uniformity in its interptetation and resort may be made to travaux préparatoires and the report of the Secretary General of the United Nations Commission on International Trade Law dated March 25, 1985 entitled “International Commercial Arbitration: Analytical Commentary on Draft Text Identified by reference number AICN. 9/264" (RA 9285, Sec. 20) Arbitration and Mediation, Distinguished international Commercial Arbitration Arbitration is international if any of the following instances occur: (DOCA) 1. The parties’ place of business, which at the time of the conclusion of the arbitration agreement, is in Different states; 2. The place of arbitration provided in the arbitration agreement and in which the parties have their places of business, is Outside the Philippines: 3. The place where a substantial part of the obligation is to be performed or the place with which the subject matter of the dispute is mostClosely connected, and in which the parties have their places of business, is outside the Philippines; or 4. The parties have expressly agreed that the subject matter of the arbitration Agreement relates to more than one country (ROBENIOL, supra at 48) forest Arbitration ‘Arbitration is "commercial" if it covers matters arising from all relationships of a commercial nature, whether contractual or not (RA 9285, Soc. 3(9)). Such as: (TraDisCo?-FaLCE-LIF-BIJoC) 1. Any Trade transaction for the Supply or ‘exchange of goods or services; 2 Distribution agreamants; 3. Construction of works; 4. Commercial representation or agency; 5. Factoring; 6. Leasing; 7. Gonsulting: 8. Engineering; 9, Licensing; 10. Investment; 11. Financing; 12. Banking; 13. Insurance; 14, Joint venture and other forms of industrial or business cooperation; 15. Garriage of goods or passengers by air, sea, rail or road (RA 9285, Sec. 21). Legal Representation in International Arbitration A representative of a party in international arbitration conducted in the Philippines shall not be authorized to appear as counsel in any Philippine court, or any other quasi-judicial body whether or not such appearance is in relation to the arbitration in which he appears, unless he is admitted to the practice of law in this country (RA 9285, Sec. 22). Confidentiality of Arbitration Proceedings GENERAL RULE: The arbitration proceedings, including the records, evidence and arbitral award ‘shall be confidential and-shall not be published. EXCEPTIONS: 1. With the consent of the parties, or 2. For the limited purpose of disclosing to the court relevant documents in cases where resort to court is allowed (RA 9285, Sec. 23) Provided, however, That the court in which the action or the appeal is pending may issue a protective order to prevent or prohibit disclosure of documents or information containing secret processes, developments, research and other information where itis shown that the applicant shall be materially prejudiced by an authorized disclosure thereof (RA 9285, Sec. 23) Referral to Arbitration ‘court before which an action is brought in a matter which is the subject matter of an arbitration agreement shall, if al least one party so requests not later than the pretrial conference, or upon the request of both parties thereafter, refer the parties to arbitration unless it finds that the arbitration agreement is null and void, inoperative or incapable of being performed (RA 9285, Sec. 24). Interpretation of the Act The court shall have due regard to the policy of the taw in favor of arbitration (RA 9285, Sec. 25). Where Actinn Is Gommancad Ry or Against Multiple Parties Where action is commenced by or against muttiple parlies, one or more of whom are parties to an arbitration agreement, the court shall refer to arbitration those parties who are bound by the arbitration agreement although the civil action may continue as to those who are not bound by such “arbitration agreement (Id.) Appointing Authority ‘AS used in the Model Law, it shall mean 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 condiicted. Where the parties have agreed to submit their dispute to institutional arbitration rules, and unless they have agreed to a different procedure, they shall be deemed to have agreed to the procedure under such ‘arbitration rules for the selection and appointment of arbitrators. In ad hoc arbitration, the default appointment of an arbitrator shall be made by the National President of the Integrated Bar of the Philippines (IBP) or his duly authorized representative (RA 9285, Sec. 26) Interim Measure An interim measure is any temporary measure, whether in the form of an award or in another form, by which, at any time prior to the issuance of the award by which the dispute is fi nally decided, the arbitral tribunal orders a party to: 1. Maintain or restore the status quo pending determination of the dispute; 2. Take action that would prevent, or refrain from taking action that is likely to cause, current or imminent harm or prejudice to the arbitral process itself, 3. Provide a means of preserving assets out of which a subsequent award may be satisfied; or4. Preserve evidence that may be relevant and material to the resolution of the dispute (UNCITRAL Model Law, Chap. IV (A), Sec. 1, Ant.17) Grant of interim Measures of Protection After constitution of the arbitral tribunal and during arbitral proceedings, a request for an interim measure of protection, or modification thereof, may be made with the arbitral tribunal or to the extent that the arbitra! tribunal has no power to act or is unable to act effectively, the request may be made with the court (RA 9285, Sec, 28(a)). The following rules on interim or provisional relief shall be observed: 1, Any party may request that provisional relief be granted against the adverse party; 2. Such relief may be granted: a. To prevent irreparable loss oF injury: b. To provide security for the performace of any obligation; c. To produce or preserve anyévidente} or.. d, To compel any other appropriate» act or omission; Qi 3. The order granting provisional. relief may be conditioned upon the provision of Security or any act or omission specified in the order; | 4. Interim or provisional ‘relief is requested by written application transmitted by reasonable means to the Court of arbitral tribunal as the. case may be and the party-againet whomn the relief is sought, describing iii appropriate. detail the precise relief, the party against whom the reli is requested, the grounds forthe relief, and evidence supporting the request, 5. The order shall be binding upon the partios; 6. Either party may apply with, the Coiurt for assistance in Implementing of:enforcing an Interim measure ordered by an arbitral tribunal and : 7. Aparty who does not comply with the order shall be liable for all damages resulting from noncompliance, including all expenses, and reasonable attorney's fees, paid in obtaining the ‘order's judicial enforcement (RA 9285, Sec. 28(b)) Such interim measures may include but shall not be limited to: (PAPI) Preliminary injunction directed against a party: Appointment of receivers or detention; Preservation; and Inspection of property that is the subject of the Gispute in arbitration ither party may apply with the Court for assistance in implementing or enforcing an interim measure ordered by an arbitral tribunal (Sec. 29), Pens Place of Arbitration ‘The parties are free to agree on the place of arbitration. Failing such agreement, the place of aibitration shall be in Metro Manila, 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 (Sec. 30). Rules of Procedure in International Commercial Arbitration The parties in an international commercial arbitration are free to determine the rules that will govern their arbitration proceedings. In default of an agreement of the parties, the procedure is as follows: (CD?AHECO) Statement of Claims Statement of Defenses Default of the parties Amendment of ciaims or defenses Hearings Gonelusioh/ closure @. By an awardisettlement b. By termination (ROBENIOL, supra at 89- 2). fOMESTIC ARBITRATION Governing Law: Domestic Arbitration shall be governed by R.A, 876 otherwise known as The Arbitration Law as amended by R.A. 9285 (RA 9285, Sec. 32). PoRens Applicability of the Model Law. Articles 8, 10, 11, 12, 13, 14, 18, and 19 and 29 to 32 of the Model Law and Sections 22-31 of R.A. No, 9285 shall apply to domestic arbitration (RA 9285, Sec. 33) ARBITRATION OF CONSTRUCTION DISPUTES Governing Law: The arbitration of construction disputes shall be governed by Executive Order No. 1008, or the “Construction Industry Arbitration Law” (RA 9285, Sec. 34). The topic in International Commercial Arbitration regarding the grant of interim measure of protection shall apply to arbitration of construction disputes (RA 9285, Sec. 17). Coverage Construction disputes which fall within the original and exclusive jurisdiction of the Construction Industrial Arbitration Commission (CIAC) shall include those between or among parties to, or who are otherwise bound by, an arbitration agreement, directly o by reference whether such parties are: 1. Project owner,Contractor; Subcontractor; Fabricator; Project manager; Design professional; Consultant; ‘Quantity surveyor; Bondsman; or 10. Issuer of an insurance policy in a construction project (RA 9285, Sec. 35). Zeer Ogson NOTE: The Construction Industry Arbitration Commission shail have original and exclusive jurisdiction over disputes arising from, or connected with, contracts entered into by parties involved in construction in the Philippines, whether the dispute arises before or after the completion of the contract, or after the abandonment or breach thereof (EO 1008, Sec.4). The disputes may involve either government or private contracts (/d,). Jurisdiction of the Construction Industry Arbitration Commission The CIAC's jurisdiction cannot be limited by the parties’ stipulation that only disputes in connection with or arising out of the physical construction activities (execution of the works) are-arbitrable before it. In fact, all that is required for the: CIAC to acquire jurisdiction is for the parties to a construetion contract fo agree to submit their dispute to arbitration (LICOMCEN, Inc. v. Foundation Specialists, Inc., GR. No. 167022, April 4, 2011). Since CIAC’s jurisdiction is conferred by law, it cannot be subjected to any condition or waived or diminished by the parties’ stipulation as long asthe parties agreed to submit their construction contract dispute to arbitration (TIEZA v. Global-V’ Builders, G.R. No. 219708, October 3, 2018). Authority to Act as Mediator or Arbitrator By written agreement of the parties to a dispute, an arbitrator may act as mediator and a mediator may act as arbitrator. The parties may also agree in writing that following @ successful mediation, the mediator shall issue the settlement agreement in the form of an arbitral award (Sec. 36). Appointment of Foreign Arbitrator The CIAC shall promulgate rules to allow for the appointment of a foreign arbitrator or co-arbitrator or chairman of a tribunal a person who has not been previously accredited by CIAC. Provided that: 1. The dispute is a construction dispute-in which one party is an international party; 2. “The person to be appointed agreed to abide by the arbitration rules and policies of CIAC; 3. He/she is either a co-atbitrator upon the nomination of the international party; or he/she is the common choice of the two CIAC accredited arbitrators first appointed, one of whom was nominated by the international party; and 4, The foreign arbitrator shall be of different nationality from the international party (RA 9285, Sec. 37). RTC to Dismiss Case Involving a Construction Dispute ‘The RTC before which a construction dispute is filed shall, upon becoming aware, not later than the pre- trial conference, that the parties had entered into an arbitration agreement, dismiss the case and refer the patties to arbitration to be conducted by the CIAC, unless both’ parties, assisted by their respective counsel, shall submit to the RTC a written agreement exclusively for the Court, rather than the CIAC, to resolve the dispute (RA 9285, Sec. 39). «Factual Findings of Construction Arbitrators "GENERAL RULE: Factual findings of construction arbitrators ate final and conclusive and not reviewable by the CA EXCEPTIONS: ‘Factual findings of construction arbitrators may be reviewed by the Court: 1. Hf the award was procured by corruption, fraud, or other. uidue means; 2, There'’is' evident partiality or corruption of arbitrators; 3. Misconduct of arbitrators; 4... Matbitrators are disqualified under R.A, No. 876; S. When the arbitrators exceeded their powers (Shinryo (Philippines) Company’ v. RRN Incorporatated, G.R. No. 172525, October 20, 2010), NOTE: By express provision of Section 19 thereof, the arbitral award of the CIAC is final and unappealabie, except on questions of law, which are appealable to the Supreme Court. With the amendments introduced by R.A. No. 7902 and promulgation of the 1997 Rules of Civil Procedure, as amended, the CIAC was included in the enumeration of quasi-judicial agencies whose decisions or awards may be appealed to the CA ina petition for review under Rule 43. Such review of the CIAC award may involve either questions of fact, of law, or of fact and law (J Plus Asia Development Corporation v. Utility Assurance Corporation, G.R No. 199650, June 26, 2013).Guidelines in the Application of the Court's Ruling on Modes of Judicial Review of CIAG Arbitral Awards In Global Medical Center of Laguna, Inc., v. Ross Systoms International Inc., the Court sets the following guidelines with respect to the application of the prasant ruling on modes of judicial review vis-a- vis CIAG arbitral awards: 4, For appeals from CIAC arbitral awards that have already been filed and are currently pending before the CA under Rule 43, tho prior availability of the appeal on matters of fact and law thereon applies. This is only proper since the parties resorted to this mode of review as it was the existing procedural rules at the time of filing, prior fo the instant amendment 2. For future appeals from CIAC arbitral awards that will be filed after the promulgation of this Decision: a Ifthe issue to be raised by the partes is a | pure question of law, thé appeal. should be.” fled directly and exclusively with the Court" through a petition for review under ‘Rule 45. b. If the parties will appeat factual,issues; the appeal may be filed with the CA, but only on the limited grounds that pertain to either a challenge on the integrity of the CIAC arbitral tribunal ({@., allegations of corruption. fraud, misconduct, ' evident partiality, incapacity or’ excess of powers. within the tribunal) or an allegation that the. arbitral tribunal violated the Constitution or positive law in the conduct of the arbitral process, through the special civil action ‘ata petition for certiorari under Rule 65, on grounds: of grave abuse of discretion amounting to lack or excess in jurisdiction The CA may conduct a factual review. only upon sufficient and demonstrable. showing that the integrity of the CIAC arbitral tribunal had indeed been compromised, or that it committed unconstitutional or illegal acts in the conduct of the arbitration. 3. Under no other circumstances other than the limited grounds provided above may parties appeal to the CA a CIAC arbitral award. (Global Medical Center of Laguna, Inc., v. Ross ‘Systems International Inc., G.R. No. 230112, May 11, 2021) il Review of Arbitral Awards Domestic Awards Atany time within one (1) month after the award: is made, any party to the controversy which was arbitrated, may apply to the court having jurisdiction for an order confirming the award The court must grant such order unless the award is vacated, modified or corrected (R.A. No. 876, Sec. 23). The confirmation of domestic award shall be made by the RTC A Domestic Arbitral Award, when confirmed, shail be enforced in the samo manner ae final ‘and executory decisions of the RTC. ACIAC arbitral award need not be confirmed by the RTC to be executory as provided hy F.O. ‘No. 1008 (RA 9285, Sec. 40). Vacation of Award A party to a domestic arbitration may question the arbitral award with the appropriate RTC in accordance with rules of procedure to be promulgated by the SC only on those grounds ‘enumerated under Section 25 of R.A. No. 876. ny other ground raised against the domestic ,afbitcal award shall be disregarded by the RTC \y (RA 9286, Sec. 41) NOTE: ,(Se% Discussion on Grounds For Vacatiig Award on Sec. 24, Sec. 876) Foreign Arbitral Awards ‘The !New “York “Convention shall govern the recobjition ‘and enforcement of arbitral awards covered by the said Convention (RA 9285, Sec. 42); : i ‘ New York Convention it provides for a uniform set of rules on the recégnition and enforcement of foreign arbitral awards (AQUINO, supra at xxiv). Recognition.and Enforcement of Arbitral Awards. ‘The-recognition and enforcement of such arbitral awards shell be filed with the RTG in accordance with the rules of procedure to be promulgated by the SC. Said procedural rules shall provide that the party relying on the award or applying for its enforcement shall fle with the court the original or authenticated copy of the award and the arbitration agreement. If the award or agreement was not made in any official languages, the party shall supply a duly ceriified translation thereof into any of such languages (RA 9285, Sec. 42). A Foreign Arbitral Award, when confirmed by a court of a foreign country/regional trial court, shall be enforced as a foreign arbitral award and NOT us a judgment of a foreign court (RA 9285, Sec. 44). 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 (Id.)If the application for rejection or suspension of enforcement of an award has been made, the RTC. may, ifit considers it proper, vacate its decision and may also, on the application of the party claiming recognition or enforcement of the award, order the party to provide appropriate security (RA 9285, Sec. 42), Recegfition and Fnforcement of Foreign Arbitral ‘Awards Not Covered by the New York Convention The Court may, on ‘grounds of comity and reciprocity, recognize and enforce a non-convention award as a convention award (RA 9285, Sec. 43). Comity — The courtesy or a disposition to accommodate a judicial decision or award made in another jurisdiction. It is a principle in accordance with the courts of one state or jurisdiction will give effect to the laws and judicial decisions of another, not as a matter of obligation but out of deference and respect (Black's Law Dictionary, 6" Edition) Reciprocity - It is founded on. mutuality. It is a relation existing between two states when each of them gives the subjects of the other certain privileges, on condition that its own subjects shall enjoy similar privileges (AQUINO, supra at 63). Rejection of Foreign Arbitral Award 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 SC ‘only on those grounds enumerated under Article V of the New York Convention. Any other ground shall be disregarded by the RTC (RA 9285, Sec. 45) Grounds under New York Convention: 1. Recognition and enforcement of the award may be refused, af the request of the party against whom it is invoked, only if that party furnishes to the competent authority where the recognition and enforcement is sought, proof that: a. The parties to the agreement referred to in Article! were, under the law applicable to them, under some ‘incapacity, or said + agreement is not valid under the law to which the parties have subjected it or, failing any indication thereon, under the law of the country where the award was made; or b. The party against whom the award is invoked was not given proper notice of the appointment of the arbitrator or of the arbitration proceedings or was otherwise unable to present his case; or c. The award deals with difference not contemplated by or not falling within the terms of the submission to arbitration, or it contains decisions on matters beyond the scope of the submission to arbitration, provided that, if the decisions on matters submitted to arbitration can be separated from those not so submitted, that part of the award which contains decisions on matters submitted to arbitration may be recognized and enforced; or d. The composition of the tribunal authority or the arbitral procedure was not in accordance with the agreement of the parties, or, failing such agreement, was nol ifi accordance with the law of the country where the arbitration took place; or e, The award has not yet become binding on the parties, or has been set aside or suspended by a competent authority of the country in which, or under the law of which, the award was made. * 2. Recognition and enforcement of an arbitral award may also be refused if the competent authority in the country where recognition and enforcement is sought finds that: <8 gee Tha‘subject matter of the difference is not Capiible of settlement by arbitration under the law. of that country; or b. The recognition or enforcement of the award would be contrary to the public policy of that cOuntry (New York Convention, Art. V) Srovesion Judgment on Arbitral Awards ‘A decision of the RTC confirming, vacating, setting aside, modifying or correcting an arbitral award may be, appealed to the CA in accordance with the rules “of procedure to be promulgated by the SC. The losing party who appeals a judgment confirming the arbitral award shall be required by the appellate court to post a counterbond executed in favor of the prevailing party equal to the amount of the award (RA 9285, Sec. 46). Venue and Jurisdiction: 1. Proceedings for recognition and enforcement of an arbitration agreement; 2. For vacation, setting aside, correction or modification of an arbitral award; and 3. Any application with a court for arbitration assistance and supervision, shall be deemed as special proceedings and shall be filed with the RTC: a. Where the arbitration proceedings are conducted; b. Where the asset to be attached or levied upon or the act to be enjoined is located; c. Where any of the parties to the dispute resides, or has his place of business; orIf the application for rejection or suspension of enforcement of an award has been made, the RTC. may, if it considers it proper, vacate its decision and may also, on the application of the party claiming recognition or enforcement of the award, order the party to provide appropriate security (RA 9285, Sec. 42), Recognition and Fnforcement of Foreign Arbitral Awards Not Covered by the New York Convention The Court may, on “grounds of comity and reciprocity, recognize and enforce a non-convention award as a convention award (RA 9285, Sec. 43). Comity The courtesy or a disposition to accommodate a judicial decision or award made in another jurisdiction. It is a principle in accordance with the courts of one state or jurisdiction will give effect to the laws and judicial decisions of another, not as a matter of obligation but out of deference and respect (Black's Law Dictionary, 6" Edition). Reciprocity It is founded on mutuality. It is a relation existing between two states when each of them gives tho subjects of the other certain privileges, on condition that its own subjects shall enjoy similar privileges (AQUINO, supra at 63). Rejection of Foreign Arbitral Award 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 SC only on those grounds enumerated under Article V of the New York Convention. Any other ground shall be disregarded by the RTC (RA 9285, Sec. 45) Grounds under New York Convention: 1. Recognition and enforcement of the award may be refused, at the request of the party against whom it is invoked, only if that party furnishes to the competent authority where the recognition and enforcement is sought, proof thal. a. The parties to the agreement referred to in Article 11 were, under the law applicable to them, under some ‘incapacity, or said agreement is not valid under the law to which the parties have subjected it or, failing any indication thereon, under the law of the country where the award was made; or b. The party against whom the award is invoked was not given proper notice of the appointment of the arbitrator or of the arbitration proceedings or was otherwise unable to present his case; or c. The award deals difference not contemplated by or not falling within the terms of the submission to arbitration, or it contains decisions on matters beyond the scope of the submission to arbitration, provided that, If the decisions on matters submitted to arbitration can be separated from those not so submitted, that part of the award which contains decisions on matters submitted to arbitration may be recognized and enforced; or d. The composition of the tribunal authority or the arbitral procedure was not in accordance with the agreement of the parties, or, failing such agreement, was nol in accordance with the law of the country where the arbitration took place; or e. The award has not yel become binding on the parties, or has been set aside or suspended by a competent authority of the country in which, or under the law of which, the award was made. 2. Recognition and enforcement of an arbitral award may also be refused if the competent authority in the country where recognition and enforcement is sought finds that: ‘The subject matter of the difference is not * Capable of settlement by arbitration under the law, of that country: or b. The recognition or enforcement of the award would be.contrary to the public policy of that c6untry (New York Convention, Art. V). Appeal’of Judgment on Arbitral Awards ‘A decision of the RTC confirming, vacating, setting aside, modifying or correcting an arbitral award may be, appealed to the CA in accordance with the rules of procedure to be promulgated by the SC. ‘The losing party who appeals a judgment confirming the arbitral award shall be required by the appellate court to post a counterbond executed in favor of the prevailing party equal to the amount of the award (RA 9285, Sec. 46). Venue and Jurisdiction: 1. Proceedings for recognition and enforcement of an arbitration agreement; 2. For vacation, setting aside, correction or modification of an arbitral award; and 3. Any application with a court for arbitration assistance and supervision, shall be deemed as special proceedings and shall be filed with the RTC: a. Where the arbitration proceedings are conducted; b. Where the asset to be attached or levied upon or the act to be enjoined is located; Where any of the parties to the dispute resides. or has his piace of business; ord. In the National Judicial Capital Region, at the option of the applicant (RA 9285, Sec 47). Notice of Proceeding to Parties in a special proceeding for recognition and enforcement of an arbitral award, the Court shall send notice to the parties at their address of record in the arbitration, or if any party cannot be served notice at such address, at such party's last known address. The notice shall be sent at least 15 days before the date of initial hearing of the application (RA 9285, Sec. 48).