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ALTERNATIVE DISPUTE RESOLUTION November 26, 2013

What is meant by ADR? What are the different forms of ADR? How do you define ARBITRATION? What is the governing LAW for ADR?? So ADR as defined under Sec. 3 of the ADR Law Any process or procedure used to resolve a dispute or controversy, other than by adjudication of a presiding judge of court or an officer of a government agency, as defined in this Act, in which a neutral 3 rd party participates to assist in the resolution of issues, which includes arbitration, mediation, conciliation, early neutral evaluation, mini-trial, or any combination thereof; !a"e note, the choice #iven to an$ %art$ in dis%ute the mode in reso&vin# their differences is #iven to both the %arties. So the forms of ADR are the fo&&owin# '(D)A!)*N (+AL,A!)*N *- A !.)RD /(RS*N ')N)0!R)AL '(D)A!)*N0AR1)!RA!)*N 2,D)3)AL D)S/,!( R(S*L,!)*N

)n the case of R313 vs. 1D* 4R. 156161 and 1D* vs. 3A 4R 155237, both decided on Dec. 10, 2012, the S3 decided that ADR was envisioned as an im%ortant means to achieve a s%eed$ and im%artia& 8ustice, and dec&o# court doc"ets. !he most im%ortant feature of arbitration and the "e$ to its success is the %ub&ic9s confidence and trust in the inte#rit$ of the %rocess. !he #overnin# &aw is RA 527:, so %ara mada&i matandaan, R(S*L+)N4 L(4AL D)S/,!(S ;)!.*,! 4*)N4 !* !.( 3*,R!S. What is the states policy regarding the resolution o dispute! Sec. 3, RA !"#, the state shall actively promote party autonomy in the resolution of disputes or the freedom of the party to ma$e their own arrangements to resolve their disputes. %oward this end, the state shall encourage and actively promote the use of A&R as an important means to achieve speedy and impartial justice and declog court doc$ets. As such, the state shall provide means for the use of A&R as an efficient tool and an alternative procedure for the resolution of appropriate cases. 'i$ewise, the state shall enlist active private sector participation in the settlement of disputes through A&R. Did RA "#$%& repeal or a'end our syste' o (arangay )ustice! Answer Sec. :3, RA 527:..it did not re%ea& or amend

*or e+a'ple a case is iled in court& ,ho controls the proceedings! !a"e note that if a case if fi&ed in court, it is contro&&ed b$ the 8ud#e, the %ub&ic %rosecutor as we&& as the counse& for the accused. What is the ulti'ate goal o ADR! <(m%owerment of dis%utants in the manner of reso&vin# their dis%utes.= So in effect, if it is throu#h ADR, who contro&s the %roceedin#s> )t is the %arties, un&i"e if the case is fi&ed in court. -ust a -EDIATOR (e a la,yer and i the parties reaches a .oluntary agree'ent& is this su()ect to court appro.al! )f there is a&read$ an a#reement reached b$ the %arties durin# the mediation, the same is sti&& sub8ect to the a%%rova& of the court. !his is because the court has to see to it that the terms of the a#reement is not contrar$ to &aw, mora&, %ub&ic %o&ic$ and %ub&ic order. /o, do you de ine )udicial dispute resolution! 0 .ere, the third %art$ who assists the %arties in the dis%ute is the 8ud#e.

/o, do you de ine a 'ini0trial! 0 !here is a neutra& third %art$ who ma$ be as" to render a non0bindin# advisor$ o%inion re#ardin# the outcome of the dis%ute if &iti#ated.

/o, do you de ine 'ediation0ar(itration! 0 )t invo&ves a 20ste% dis%ute reso&ution invo&vin# both mediation and arbitration.

What are the (ene its o ar(itration! 0 )t is &ess e?%ensive, and faster com%ared to fi&in# in courts

What are the disad.antages o ar(itration! 0 !he &ac" of %recedence that wi&& #uide the arbitrator since the cases brou#ht before them are based on the a#reement of the %arties and the$ are not bound b$ an$ %revious 8ud#ments.

What are the salient eature o RA "#$%! )t %rescribes ru&es on mediation )t incor%orates, as %art of the &aw, the 'ode& &aw on )nternationa& 3ommercia& Arbitration ado%ted b$ the ,nited Nationa& 3ommission on )nternationa& !rade Law )t ma"es the 'ode& Law a%%&icab&e to internationa& commercia& arbitration and stren#thenin# it throu#h s%ecific %rovisions of RA 527: )t stren#thens domestic arbitration b$ ma"in# s%ecific %rovisions of the 'ode& Law and RA 527: %ertainin# to internationa& commercia& arbitration )t desi#nates an a%%ointin# authorit$ with the %ower to desi#nate an arbitrator for the %arties in defau&t situations

/rovides a broad and uniform sco%e of interim or %rovisiona& re&ief in internationa& commercia& arbitration and domestic arbitration Sets the basic %rinci%&es in the enforcement of forei#n arbitra& award, whether or not the$ fa&& within the covera#e of the New @or" 3onvention. What are the inds of arbitration !rovided under RA "#$%? How do you define domesti& arbitration and how do you distinguish it from an internationa' &ommer&ia' arbitration? How do you define an internationa' &ommer&ia' arbitration? So in both, the seat of arbitration is in the /hi&i%%ines and the award is a&so rendered in the /hi&i%%ines. Do'estic Ar(itration is defined as an arbitration that is not internationa&. )t is an International 1o''ercial Ar(itration if 1. !he %arties to an arbitration a#reement have, at the time of the conc&usion of that a#reement, their %&ace of business in different statesA 2. ;here either the %&ace of arbitration as determined under the a#reement or the %&ace where a substantia& %art of the ob&i#ations of the commercia& re&ationshi% is to be %erformed or with which the sub8ect matter of the dis%ute is the most c&ose&$ connected, is situated outside of the state where the %arties have their %&ace of businessA 3. !he %arties have e?%ress&$ a#reed that the sub8ect matter of the arbitration a#reement re&ates to more than one countr$A (ow do you define AR)*%RA%*+, and how do you distinguish a -.)'*/ 0.&12 from an A)R*%RA%+R3 So ta"e note ha na if a case is fi&ed in court it does not automatica&&$ become a %ub&ic record because that is sti&& confidentia&. What are the e+ceptions to the application o the ADR and ,hy! 1. Labor dis%utes, because these are #overned b$ the %rovisions of the Labor 3ode. 2. 3ivi& status of %ersons 3. +a&idit$ of marria#e 3. 4rounds of &e#a& se%aration B. 2urisdiction of courts :. -uture &e#itime 6. 3rimina& &iabi&it$, what can be the sub8ect of mediation is on&$ the civi& as%ect of the crimina& case. 6. !hose which b$ &aw cannot be com%romised. RA 527: covers two #enera& t$%es of arbitration ta"in# %&ace in the /hi&i%%ines 1. Domestic arbitration 2. )nternationa& 3ommercia& Arbitration

0 1oth arbitrations are he&d in the /hi&i%%ines, meanin# the seat of arbitration is in the /hi&i%%ines. !he arbitra& awards invo"ed is &i"ewise rendered in the /hi&i%%ines. )n other words, both are t$%es of /hi&i%%ine Arbitration. RA 527: &i"ewise covers Domestic Arbitra& Awards. What are Domesti& Arbitra' Awards and a (oreign Arbitra' Award? What are the different inds of foreign arbitra' awards? What is a &onvention award? ALTERNATIVE DISPUTE RESOLUTION December 10, 2013 As a review) what are the forms of Arbitration? What is domesti& arbitration? What is Internationa' *ommer&ia' Arbitration? !a"e note, internationa& commercia& arbitration is 1. !he %arties to an arbitration a#reement have, at the time of the conc&usion of that a#reement, their %&ace of business in different statesA 2. ;here either the %&ace of arbitration as determined under the a#reement or the %&ace where a substantia& %art of the ob&i#ations of the commercia& re&ationshi% is to be %erformed or with which the sub8ect matter of the dis%ute is the most c&ose&$ connected, is situated outside of the state where the %arties have their %&ace of businessA 3. !he %arties have e?%ress&$ a#reed that the sub8ect matter of the arbitration a#reement re&ates to more than one countr$A

What is an e+am!'e of an institutiona' arbitration? How do you define &ourt referred arbitration? So an e?am%&e of an institutiona& arbitration is the arbitration of construction dis%utes which fa&&s under the 8urisdiction of the 3)A3. 3ourt referred arbitration is found in sec. 2B of RA 527: 4 A court before which an action is brought in a matter which is the subject matter of an arbitration agreement shall, if at least one party so re5uests not later than the pre-trial conference, or upon the re5uest of both parties thereafter, refer the parties to arbitration unless it finds that the arbitration is null and void, inoperative or incapable of being performed. RA "#$%) &overs two genera' ty!es of arbitration ta ing !'a&e in the ,hi'i!!ines) what are those? How do you define domesti& arbitra' award? So the seat of arbitration in forei#n arbitra& awards is in a forei#n state whi&e in domestic arbitra& awards, the seat of arbitration is in the /hi&i%%ines. So those are in addition to domestic arbitration and internationa& commercia& arbitration. /rimar$ sources of arbitration Law

1. RA 527: CADR Law of 200BD and the 'ode& Law which #overns the internationa& commercia& arbitration 2. RA 766 or the Arbitration Law which was a%%roved on 2une 15, 15:3 to the e?tent that it is not su%erseded b$ RA 527: and the 'ode& Law. !his #overns Domestic Arbitration. 3. (.0 1007 which #overns the arbitration of construction dis%utes B. Artic&es 20B202026 in re&ation to 2027020B1 of the 3ivi& 3ode. :. !he %ertinent %rovisions of the Labor 3ode of the /hi&i%%ines, ru&es and re#u&ations re&atin# to reso&ution of #rievances arisin# from inter%retation and im%&ementation of 31A 6. /rovisions of arbitration in the 3&earin# .ouse Ru&es and Re#u&ations of the /hi&i%%ine 3&earin# .ouse 3or%oration and its Arbitration Ru&es of /rocedure 6. Doctrines or &aw %rinci%&es dea&in# with arbitration estab&ished b$ the Su%reme 3ourt 7. 3onvention on the Reco#nition and (nforcement of -orei#n Arbitra& Awards adhered to b$ the /hi&i%%ines in 156:A and 5. ;or&d 1an" 3onvention creatin# the )nternationa& 3enter for the Sett&ement of )nvestment Dis%utes What are the e+&e!tions to the a!!'i&ation of RA "#$%? -nder the Labor *ode) what may be sub.e&t to vo'untary arbitration? !a"e note of the fo&&owin# terms, vo&untar$ arbitration, com%u&sor$ arbitration and %reventive arbitration. So what can the sub8ect of vo&untar$ arbitration under the Labor 3ode are the ff 1. A&& unreso&ved #rievance arisin# from the inter%retation and im%&ementation of the 31A and those arisin# from the inter%retation and enforcement of com%an$ %ersonne& %o&icies, under Art. 261 of the Labor 3ode. 2. +io&ations of the 31A e?ce%t those which are #ross in character are to be reso&ved as #rievances under the 31A. 3. ,%on a#reement of the %arties, a&& other &abor dis%utes inc&udin# unfair &abor %ractices and bar#ainin# dead&oc"s inc&udin# dis%utes mentioned under Art. 216 of the Labor 3ode over which the Labor Arbiter has ori#ina& and e?c&usive 8urisdiction. B. 'one$ c&aims arisin# from the inter%retation and im%&ementation of the 31A and those arisin# from the inter%retation and enforcement of the com%an$ %ersonne& %o&icies under Art. 261. :. !ermination dis%utes and unfair &abor %ractices %rovided that these must be a#reed u%on b$ both &abor and mana#ement.

!a"e note in the case of San 2ose vs. NLR3, the S3 &aid down the fo&&owin# ru&es 1. !he 8urisdiction of the Labor Arbiter and the vo&untar$ arbitrator or %ane& over cases under Art. 216, 261 and 262 can %ossib&$ inc&ude mone$ c&aims in one form or another. 2. !he e?c&usive and ori#ina& 8urisdiction of the Labor Arbiter under Art. 216 over monetar$ c&aims is &imited on&$ to those arisin# from statues or contracts other than a 31A, whereas the +o&untar$ Arbitrator or %ane& have ori#ina& and e?c&usive 8urisdiction over mone$ c&aims arisin# from the

inter%retation or im%&ementation of 31A and those arisin# from the inter%retation or im%&ementation of com%an$ %ersonne& %o&icies under Art.261. 3. !he +o&untar$ Arbitrators or %ane& of arbitrators can e?ercise 8urisdiction over an$ and a&& dis%utes between an em%&o$er and a union andEor individua& wor"er which inc&ude dis%utes mentioned in Art. 216 of the Labor 3ode over which the Labor Arbiter has ori#ina& and e?c&usive 8urisdiction as ma$ be a#reed u%on b$ both &abor and mana#ement. !hus, both &abor and mana#ement ma$ b$ mutua& a#reement vests vo&untar$ arbitrators with 8urisdiction over cases that are without such a#reement wou&d fa&& under the 8urisdiction of the Labor Arbiter under Art. 216 of the Labor 3ode such as unfair Labor %ractices and termination dis%utes. )n the case of San 'i#ue& vs. NLR3, the S3 said that the 31A must state in an uneFuivoca& &an#ua#e that the %arties conform to the submission or termination dis%utes and unfair &abor %ractices to vo&untar$ arbitration. What is a submission agreement? What is an arbitration &'ause? ;hen $ou sa$ submission a#reement, it is an a#reement referrin# a %resent dis%ute to arbitration whi&e an arbitration c&ause is an a#reement referrin# a future dis%ute to arbitration. )n the case of +ivero vs. 3A, the S3 said that the %hrase <a&& other dis%utes= ma$ inc&ude termination dis%ute %rovided that the a#reement between the ,nion and the 3om%an$ states it in uneFuivoca& &an#ua#e that the %arties conform to the submission of termination dis%utes and unfair &abor %ractices to vo&untar$ arbitration. )n the case of A%a&iso" vs. Radio /hi&i%%ines Networ", the S3 said that the %arties can b$ mutua& a#reement refer a termination or i&&e#a& dismissa& dis%ute after it has arisen to the vo&untar$ arbitrator for reso&ution. !he$ can, &i"ewise, b$ mutua& a#reement as in their 31A refer a termination or i&&e#a& dismissa& dis%ute before it has arisen to the vo&untar$ arbitrator and not to the Labor Arbiter. 6hat is a /)A3 )n the case of Ludo and Lu$m 3or%. vs. Saornido, here the %arties e?ecuted a submission a#reement submittin# as the so&e issue to be decided b$ the vo&untar$ arbitrator the date of the re#u&ariGation of the wor"ers. .ere, the vo&untar$ arbitrator not on&$ decided the so&e issue referred but &i"ewise awarded the wor"ers their monetar$ benefits. !he S3 ru&ed that the vo&untar$ arbitrator had the necessar$ %ower to ma"e a fina& sett&ement since arbitration is the fina& resort for the ad8udication of dis%utes. !a"e note that RA 527: does not a%%&$ to the reso&ution or sett&ement of Labor dis%utes since these are covered b$ the Labor 3ode of the /hi&i%%ines. What is compulsory arbitration? If the employees go on strike, is that subject to arbitration? )n the case of San 'i#ue& 3or%. vs. NLR3, the S3 stated that amon# the %rocedura& reFuirements for a va&id stri"e under the Labor 3ode is the fi&in# of a va&id notice of stri"e with the N3'1 CNationa& 3onci&iation and 'ediation 1oardD. !he absence of this notice of stri"e ma"es the stri"e i&&e#a&. !he %ur%ose of which is to encoura#e vo&untar$ sett&ement of dis%utes. 1onstruction 1ontracts 0 4overned b$ (.* 1007 and sec.3: of RA 527: Ccha%ter 6D

3)A3 has ori#ina& and e?c&usive 8urisdiction over dis%utes arisin# from or connected with contracts entered into b$ the %arties invo&ved in the construction in the /hi&i%%ines whether the dis%ute arises before or after the

com%&etion of the contract or after the abandonment or breach thereof. ,nder sec. B of (.* 1007, the 8urisdiction of the 3)A3 ma$ inc&ude but is not &imited to vio&ations of s%ecifications of materia&s or wor"manshi%, vio&ation of the terms of a#reement, inter%retation andEor a%%&ication of contractua& %rovisions, amount of dama#es and %ena&ties, commencement time and de&a$s, maintenance and defects, %a$ment, defau&t of em%&o$er and contractor and chan#es in contract cost. *s the jurisdiction of the /*A/ limited to private contract only3 As %rovided for b$ sec.B of (.* 1007, these dis%utes ma$ invo&ve #overnment or %rivate contracts. 7ay construction disputes be settled through other modes of settling disputes3 )t can be done throu#h mediation, the basis of sec. 26 of RA 527: b$ written a#reement of %arties to a dis%ute, an arbitrator ma$ act as an arbitrator and a mediator ma$ act as an arbitrator. !a"e note that in construction dis%ute, the seat of arbitration is in the /hi&i%%ines. So if the %arties to a construction contract that is to be %erformed in the /hi&i%%ines enter into an arbitration a#reement, whether in a form of arbitration c&ause or submission a#reement, a&& dis%utes arisin# from or connected to the contract wi&& be reso&ved throu#h arbitration before the 3)A3. !he 8urisdiction of the 3)A3 over dis%utes arisin# from construction contracts is %remised u%on the e?%ress a#reement of the %arties to submit the same to vo&untar$ arbitration. What is the &ondition sine /uanon for the *IA* &an a&/uire .urisdi&tion over &onstru&tion dis!ute? What if for e+am!'e the !arties wi'' agree that they wi'' submit their &onstru&tion dis!ute to another forum other than *IA*) is that va'id? What was the ru'ing of 0* in *hina 1iang vs2 Rosa' Infrastru&ture? So as &on# as there is an a#reement to submit the dis%ute to vo&untar$ arbitration, it wi&& automatica&&$ fa&& under the 8urisdiction of the 3)A3. So ta"e note that 3hina 2ian# vs. Rosa& was decided in 1556 before the effectivit$ of RA 527:. So %ursuant to RA 527:, an$ a#reement to arbitrate a construction dis%ute before a forum other than the 3)A3 is rendered ineffective un&ess under sec. 35 where a Regional %rial /ourt 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 to be conducted by the /*A/, unless both parties, assisted by their respective counsel, shall submit to the regional trial court a written agreement e8clusive for the court, rather than the /*A/, to resolve the dispute. So da%at 3)A3 un&ess R!3, if other forum it is rendered ineffective. !a"e note RA 527: treats an$ dis%ute arisin# from construction in the /hi&i%%ines as a domestic arbitration sub8ect to the 8urisdiction of the 3)A3 even if one of the %arties to the said contract is a forei#n entit$ or an internationa& %art$. 6ho is an international party3 As defined in RA 527:, it sha&& mean an entit$ whose %&ace of business is outside the /hi&i%%ines. )t sha&& not inc&ude a domestic subsidiar$ of such internationa& %art$ or a coventurer in a 8oint venture with a %art$ which has its %&ace of business in the /hi&i%%ines. ;hat if one of the %arties to a construction contract is an internationa& %art$, wi&& the 3)A3 ta"e co#niGance of the case> So even if it is an internationa& %art$, the 3)A3 wi&& ta"e co#niGance of the case and then a forei#n arbitrator wi&& &i"ewise be a%%ointed. So an internationa& %art$ reFuires the a%%ointment of a forei#n arbitrator as co0arbitrator %rovided that

a. !he dis%ute is a construction dis%ute in which one %art$ is an internationa& %art$. b. !he %erson to be a%%ointed a#reed to abide b$ the arbitration ru&es and %o&icies of the 3)A3. c. .e or she is either co0arbitrator u%on the nomination of the internationa& %art$A or heE she is the common choice of the two 3)A30accredited arbitrators first a%%ointed one of whom was nominated b$ the internationa& %art$. d. !he forei#n arbitrator sha&& be of different nationa&it$ from the internationa& %art$.

So this is %rovided b$ sec. 36 of RA 527:. !a"e note that arbitra& award under (* 1007 need not be confirmed b$ the R!3 to be e?ecutor. Arbitra& awards are a&so fina& and not a%%ea&ab&e e?ce%t on Fuestions of &aw, facts, or mi?ed Fuestions of &aw and fact before the 3A. So arbitra& awards are immediate&$ e?ecutor$ thus as soon as the decision of the arbitra& award has become fina& and e?ecutor$, the arbitra& tribuna& or sin#&e arbitrator with the concurrence of the 3)A3 sha&& motu %ro%rio on motion of an$ %art$ issue a writ of e?ecution. )t is the %art$ who is notified of the 3)A3 decision and not the counse& on record of the %arties based on the case of /3)1 vs. 3A. -ina&&$, arbitration in the 3)A3 is he&d in %rivate and %&eadin#s are confidentia&. !he arbitra& awards are not %ub&ished, e?ce%t that the 3)A3 itse&f %ub&ishes a bu&&etin that inc&ude abstract of cases it has decided. So what is the effect of the new A&R law on construction disputes3 )t did not re%ea& the construction arbitration &aw or (* 1007.

ALTERNATIVE DISPUTE RESOLUTION 2anuar$ 6, 201B

As a review) what is the s&o!e of the .urisdi&tion of the *IA*?

What ha!!ened in the &ase of 3etro!o'itan *ebu Waters? What ha!!ened in the &ase of Lim&on&en? What are the re/uisites in order for the *IA* to a&/uire .urisdi&tion? What ha!!ened in the &ase of 3ani'a Insuran&e? What is the 4rd ind of dis!ute whi&h is under the aus!i&es of ,hi'i!!ine *'earing House *or!oration? 0 )t is the 3hec"0 3&earin# dis%ute. !a"e note that this is an institutiona& arbitration because this is under the %articu&ar aus%ices of /3.3 Arbi3om. So the Arbi3om is the bod$ that hears the chec" dis%ute. So ,hat is the condition sine 2ua non (e ore a dispute 'ay (e su()ect to ar(itration (e ore the P1/1 Ar(i1o'! 0 0 0 0 )t must be authoriGed )t must be a ban"in# institution )t must be a member of /3.3 !he %artici%ation of said ban"s in the c&earin# o%erations in the /3.3 is a manifestation of their submission to its 8urisdiction. So that the mere fact that it is a ban"in# institution authoriGed b$ the 1S/ to o%erate and that it does not %artici%ate in the chec"0c&earin# o%erations, meanin# it is not under the 8urisdiction of the /3.3 Arbi3om.

!a"e note of the %rocedure for the chec"0c&earin# dis%ute 1. An$ dis%ute or controvers$ between two or more c&earin# %artici%ants invo&vin# an$ chec" or item c&eared thru the /3.3 sha&& be submitted to the Arbi3om thru a written com%&aint of an$ %artici%ant in the controvers$. 2. -ive co%ies of com%&aint sha&& be fi&ed with the Arbi3om co%$ furnished res%ondent who sha&& have 30 non e?tendib&e da$s to fi&e answer. So 8ust read the %rocedure in $our co%iesH. ,ow what happens if a party fails to appear during the preliminary conference before the Arbi/om3 6hat is the remedy of such party3 6hat is the effect of non-e8ecutory decision of the Arbi/om3 0 0 )t sha&& be fina& without need of 8udicia& confirmation and it sha&& be a sufficient basis for the automatic debit of the amount awarded therein from the c&earin# account of the same %art$. !a"e note that inter&ocutor$ ru&in#s of the /3.3 Arbi3om, no a%%ea&s ha.

What are the di erent cases that ha.e reached the Ar(i1o' o the P1/1! -or#ed endorsement of chec"s Return of chec"s be$ond the 2B hour re#&ementar$ %eriod ,n&awfu& ne#otiation of cashier9s chec"s 'ateria&&$ a&tered chec"s Return of cashier9s chec"s due to for#ed endorsements

S%urious demand drafts and cashier9s chec"s

!he cases here are 1anco De *ro v. (Fuitab&e 1an"in# 3or%oration 1:6 S 177, Associated 1an" vs. 3A 233 S 136. )n one case of A&&ied 1an", the issue raised before the S3 is that wi&& a third %art$ com%&aint of one ban" a#ainst another invo&vin# a chec" c&eared throu#h the /3.3 %ros%er before the courts> S3 said that No, un&ess the third %art$ c&aimant has first e?hausted the arbitra& authorit$ of the /3.3 Arb3om and obtain a decision from the said bod$ adverse to its c&aim. -- 3ruG vs. .R 3onstruction, the issue here is re#ardin# the fina&it$ and conc&usiveness of the 3)A39s findin#s. !he #enera& ru&e is that factua& findin#s of construction arbitration are fina& and conc&usive and not reviewab&e on a%%ea& sub8ect to e?ce%tions ;hen the award was %rocured b$ corru%tion, fraud or other undue means. ;hen there was evident %artia&it$ or corru%tion of the arbitrators or an$ of them. !he arbitrators were #ui&t$ of misconduct in refusin# to %ost%one the hearin# u%on sufficient cause shown or in refusin# to hear evidence %ertinent and materia& to the controvers$. ;hen one of more of the arbitrators are disFua&ified to act as such under sec.5 of RA 766 and wi&fu&&$ refrained from disc&osin# such disFua&ification or of an$ other misbehaviour b$ which the ri#hts of an$ %art$ have been materia&&$ %re8udiced. ;hen the arbitrators have e?ceeded their %owers or so im%erfect&$ e?ecuted them that a mutua&, fina& and definite award u%on the sub8ect matter submitted to them was not made.

!a"e note that as #enera& ru&e, factua& findin#s of construction arbitration are fina& and conc&usive and not reviewab&e on a%%ea& sub8ect to e?ce%tions.

3ha%ter )) Arbitration as a 3ontract

6hy is an arbitration agreement deemed a contract3 !a"e note that arbitration a#reement is contractua& in nature. Necessari&$, a contract is reFuired for arbitration to ta"e %&ace and be bindin#. !he case here is 4onGa&es vs. 3&ima? 'inin#, 4R 1615:6. So as a contract, it shou&d have the essentia& e&ements of a contract name&$ the consent, ob8ect certain as we&& as the cause. Arbitration as contract, what are the s%ecific issues invo&ved> ;hether or not the arbitration a#reement re&ied b$ the %art$ is in e?istence )f so, whether it is va&id and enforceab&e

;hat are the two basic cate#ories of arbitration that ma$ be he&d in the /hi&i%%ines under RA 527:> As a review, we have Domestic Arbitration and )nternationa& 3ommercia& Arbitration. )n both, the seat of arbitration is in the /hi&i%%ines, thus both "ind of arbitration #ive rise to Domestic or /hi&i%%ine Arbitra& awards. When is ar(itration co''ercial!

,nder sec. 21 of RA 527:, if it invo&ves matter arisin# from a&& re&ationshi%s of a commercia& nature, whether contractua& or not. !hese commercia& re&ationshi%s inc&ude, but are not &imited to the fo&&owin# An$ trade transaction for the su%%&$ or e?chan#e of #oods or services Distribution a#reement 3onstruction of wor"s 3ommercia& re%resentation or a#enc$ -actorin# Leasin# 3onsu&tin# (n#ineerin# )nvestment -inancin# 1an"in# )nsurance 2oint venture and other forms of industria& or business coo%eration 3arria#e of #oods b$ air, sea&, rai& or road

;hat is the ru&e that wi&& #overn the va&idit$ of an arbitration a#reement> )t wi&& be #overn b$ the &aw a#ree u%on b$ the %arties. )t covers both domestic and internationa& commercia& arbitration. )n the absence of the &aw a#reed u%on, it is determined b$ the /hi&i%%ine &aw. ;hat are the conditions in order for arbitration to %roceed> !here must be a va&id and enforceab&e arbitration a#reement in the contract for future dis%ute or an arbitration c&ause. !here shou&d be a submission a#reement for arbitration of %resent dis%ute.

6hat is the freedom of contract principle3 (ow about the relativity of contract principle3 %he mutuality of contract principle3 !a"e note that mutua&it$ contract %rinci%&e means that the contract must bind both contractin# %arties. )ts va&idit$ of com%&iance cannot be &eft to the wi&& of one of them. So both must have the ri#ht to com%e& the other to refer the dis%ute to arbitration. )f the ri#ht to refer the dis%ute to arbitration is #iven on&$ to one of the contractin# %arties then the a#reement to arbitrate wou&d be void for &ac" of mutua&it$. Re#ardin# the freedom of contract %rinci%&e or autonom$ of contract, the case is .eirs of Au#usto Sa&as vs.

La%era& Rea&t$ 325 scra 610. *s an arbitration agreement re5uired to be in a particular form3 )n one case of 1- 3onstruction vs. 3A 277 S3RA 266, the arbitration a#reement ma$ be made throu#h an e?chan#e of &etter or throu#h fa? or b$ reference to #enera& %rinted conditions which contain an arbitration c&ause that are actua&&$ a%%ended to the contract or b$ a mere statement of incor%oration in a contract of the terms of another document &i"e charter %art$. )n one case, the S3 said that a bindin# arbitration a#reement ma$ be contained in one of the various documents referred to b$ the %arties in their %rinci%a& contract even if the other %arties re%resentative did not si#n or initia&&ed the conditions of contract, that %art$ was neverthe&ess bound b$ the arbitration c&ause. So the %rinci%&e here is that a contract need not be contained in a sin#&e writin#. !hus, it ma$ be co&&ected from severa& writin#s which do not conf&ict with each other and which when connected show the %art$, sub8ect matter, terms and consideration as in contract entered into b$ corres%ondence. Arbitration a#reements &i"e contracts are #enera&&$ bindin# in whatever form the$ ma$ have been entered into %rovided that the essentia& reFuisites of a bindin# contract are %resent. !a"e note, an a#reement to arbitrate can be e?%ress or im%&ied. )t is e?%ress when a %art$ si#ns an a#reement containin# an arbitration c&ause or enters into a submission a#reement. )t is im%&ied when a %art$ enters into an a#reement that incor%orates b$ reference an arbitration a#reement but an arbitration a#reement must be in writin#.

ALTERNATIVE DISPUTE RESOLUTION 2anuar$ 1B, 201B

6hat is the principle of separability3 6hat if the party repudiated the main contract, what will happen to the arbitration contract3 )n one case 4R 16:B0B 2an. 31, 2011, the S3 said that even if the %art$ has re%udiated the main contract it does not %revent the same from enforcin# the arbitration c&ause based on the %rinci%&e of se%arabi&it$. .ere, the S3 said that an arbitration a#reement forms %art of the main contract sha&& not be re#arded as a va&id or non0e?istent 8ust because the main contract is a va&id or did not come into e?istence since the arbitration sha&& be treated as a se%arate a#reement inde%endent of the main contract. !o reiterate, a contrar$ ru&in# wou&d su##est that a %art$9s mere re%udiation of the main contract is sufficient to avoid arbitration and that is e?act&$ the situation that the se%arabi&it$ doctrine sou#ht to avoid. 6hat governs the capacity of the parties to contract3 )f it %ertains to a /hi&i%%ine nationa&, it is #overned b$ the &aw on contracts.

(ow about the legal capacity of a foreigner to contract3 )t is determined b$ the &aws of the countr$ of his nationa&it$ %ursuant to Art. 1: of the 3ivi& 3ode. (ow about the capacity of the State and its instrumentalities to contract3 Say for the e8ample a government enters into a contract with a private entity, who represents the government3 /an you please e8plain again what is the relativity of contract principle3 So it is bindin# between the %arties thereto as we&& as their assi#ns and heirs. !he case there is Sa&as 2r. vs. La%era& Rea&t$ 320 scra 610. (ow about in construction contracts, how can you relate that to the relativity principle3 !a"e note under sec. 2: of RA 527:, for construction contracts to be %erformed in the /hi&i%%ines, the a#reement binds the %arties thereto or who are otherwise bound b$ the arbitration a#reement direct&$ or b$ reference of such %arties, %ro8ect owner, contractor, subcontractor, arbitrator, %ro8ect mana#er, desi#n %rofessiona&, consu&tant, Fua&it$ surve$or, bondsman or insurer of the insurance %o&ic$ in an construction %ro8ect. A#ain, under the re&ativit$ of contract %rinci%&e, it on&$ binds the %arties thereto as we&& as their assi#ns and heirs. 6hat is the e8ception to the principle of relativity in relation to arbitration agreement3 A sec. 2:, RA 527: So the wisdom behind the &aw is that the a#reement to arbitrate ma$ be affected b$ subseFuent events of the non0a%%&ication of the arbitration a#reement if other %arties are invo&ved who are not %riv$ toEwho are not bound b$ the arbitration a#reement and who must be inc&uded in the suit so that the com%&ete reso&ution of the dis%ute is %ossib&e. !he &eadin# cases are De& 'onte vs. 3A 3:1 S3RA 363 and !o$ota 'otor /hi&. +s. 3A. So in De& 'onte vs. 3A, ta"es the e?ce%tion to the #enera& ru&e that the arbitration a#reement on&$ binds the %arties thereto as we&& as their assi#ns and heirs. .ere is an e?ce%tion to the #enera& ru&e because the case cannot be s%eedi&$ and efficient&$ reso&ved in its entiret$ in both arbitration and tria& where to be simu&taneous&$ conducted or where the tria& is to be sus%ended %endin# arbitration. )n the case of !o$ota, S3 said that the mere addition of a %art$ who is not a %art$ to the arbitration a#reement does not render the arbitration &aws ineffective. So ta"e note, under RA 527:, the %o&ic$ of the &aw is arbitration before the$ can resort to court action %recise&$ because the %ur%ose of the &aw is to dec&o# court doc"ets. So does the rule imply that there cannot be a judicial remedy before we commence arbitration3 6hat is your ground3 So $our #round is that $ou want to Fuestion the e?istence, va&idit$ or enforceabi&it$ of the arbitration a#reement. 6hat is your initiatory pleading if your ground is under Rule 33 A it is a %etition After petition is heard and the court determines that the arbitration is valid, what is your remedy against the finding of the court3 6hat is the duty of the court if it ma$es a prima facie finding that indeed the arbitration agreement is valid3

So the court wi&& refer it to arbitration %ursuant to arbitration a#reement. 6hat if the court finds it unenforceable3 So in this case, the court ma$ %roceed to hear and decide the case. 6hat is the subject matter of arbitration3 An$thin# that %arties ma$ a#ree e?ce%t the civi& status of %ersons, va&idit$ of marria#e, an$ #round for &e#a& se%aration, 8urisdiction of courts, crimina& &iabi&it$, those which b$ &aw cannot be com%romised. !a"e note that the area of a#reement must e?tend to a&& %oints that the %arties consider essentia& otherwise there is no contract to s%ea" of. !hus, such submissionEcontract to arbitrate ma$ inc&ude Fuestion arisin# out of va&uation, a%%raisa& or other controvers$ which ma$ be co&&atera&, incidenta&, %recedent or subseFuent to an$ issue between the %arties. A#ain as a reiteration, what is the %rinci%&e of se%arabi&it$> !hat is found in ru&e 2.2 CbD of s%ecia& ADR ru&es. !hese a%%&$ to both internationa& domestic arbitration and domestic arbitration. )f it is )3A, the basis is art. 16 of the mode& &aw whi&e in DA, the basis of se%arabi&it$ are 1. !he civi& code wEc %rescribes a %resum%tion of divisibi&it$ or se%arabi&it$ of contract 2. /rinci%&e of se%arabi&it$ wEc is found in sec. 2 and 6 of arbitration &aw. *s fraudulent inducement subject to arbitration3 !a"e note that there is nothin# that wou&d bar the arbitra& tribuna& from ru&in# u%on the issue on fraudu&ent inducement in the creation of the contract that embodies the arbitration c&ause. !he fact that the %art$ to the contract desires to annu& the contract as voidab&e for vitiation of consent due to fraud does not remove the issue of fraudu&ent inducement in the ambit of the arbitration c&ause or from the authorit$ of the arbitra& tribuna& to ru&e u%on it or even the courts. +ices of consent is actionab&e since it ma"es the contract voidab&e. (ow do you aver fraud in your pleading3 *f */A, when do you invo$e the e8istence of arbitration agreement3 ;hat are the factors to be considered when a %art$ is deemed to have waived the ri#ht to reFuire arbitration> 1. ;hether the %art$9s action is inconsistent wE the ri#ht to arbitrate. 2. ;hether the &iti#ation machiner$ has been substantia&&$ invo"ed. 3. ;hether a %art$ either reFuested arbitration enforcement c&ose to the trai& date of de&a$ed for a &on# %eriod before as"in# for the sta$ of the suit. B. ;hether the defendant see"in# arbitration fi&ed a counterc&aim as"in# for a sta$ of the %roceedin#s. :. ;hether im%ortant intervenin# ste%s, such as resort to discover$ %rocedure not otherwise avai&ab&e in arbitration, have been ta"en. 6. ;hether de&a$ affected, mis&ed, or %re8udiced the o%%osin# %art$. 6. ;hen %arties in fact &iti#ate in a court of &aw a dis%ute that is sub8ect to arbitration.

)n the case of -ar (ast )nt9& )m%ort vs. Nan"ai Io#$o, S3 said that havin# waived the recourse throu#h arbitration the &osin# %art$ cannot thereafter Fuestion the 8urisdiction of the court. !he #enera& %remise is that an arbitration a#reement invo"ed in a time&$ manner %rec&udes court action. ;e &earned that this is not abso&ute because under the s%ecia& ru&es the %art$ ma$ have 8udicia& remedies %rovided b$ &aw. !a"e note that an arbitration a#reement is the &aw of the %arties and the$ are e?%ected to abide b$ it in #ood faith. )n the case of 3hun# -u )ndustr$ vs. 3A, if an actionEdis%ute sub8ect of arbitration is instituted in the court of &aw, the court is not at &ibert$ to disre#ard the arbitration a#reement and a&&ow the court action to %roceed. !he correct %rocedure is for the court to sus%end the case, not dismiss it, and reFuire the %arties to %roceed to arbitration in accordance with their a#reement. )n another case of Asset /rivatiGation !rust vs. 3A, 300 S :65, it is erroneous for the court to issue a fina& order dismissin# the case, rather the court shou&d mere&$ sus%end the case. Amon# the reasons for mere&$ sus%endin#, and not dismissin# the case, is that the %arties ma$ &ater on #o bac" to the court where the case was %endin# to have the award confirmed b$ the said court. 9or e8ample there:s arbitration agreement but parties instead filed a case in court in contravention of the agreement, what are the remedies3 1. -i&e a motion to dismiss 2. Sus%end court %roceedin#s 3. 'otion for referra& to ADR 2ust read R,L( B c&assH !a"e note that reFuest for referra& shou&d be in a motion and attached to the motion is an authentic co%$ of the arbitration a#reement. Ru&e B.:. After the hearin#, the court sha&& sta$ the action if it finds based on the %&eadin# and su%%ortin# documents submitted b$ the %arties that there is an arbitration a#reement, otherwise the court sha&& continue with the 8udicia& %roceedin#s. !a"e note of ru&e B.6, there is no reconsideration, a%%ea& or certiorari. An order referrin# the dis%ute to arbitration sha&& be immediate&$ e?ecutor$ and sha&& not be sub8ect to a motion for reconsideration, a%%ea& or a %etition for certiorari. An order den$in# the reFuest to refer the dis%ute to arbitration sha&& not be sub8ect to an a%%ea&, but ma$ be the sub8ect of a motion for reconsideration, andoEor a %etition for certiorari. Ru&e B is re&ated to sec. 2B of RA 527: which %rovides that a court in which an action is brou#ht in a matter which is the sub8ect matter of an arbitration a#reement sha&&, if at &east one %art$ so reFuests not &ater than the %re0tria& conference, or u%on the reFuest of both %arties thereafter, refer the %arties to arbitration un&ess it finds that the arbitration a#reement is nu&& and void, ino%erative or inca%ab&e of bein# %erformed. A#ain here, the court is authoriGed to ta"e a %rima facie findin# of the e?istence, va&idit$, as we&& as the enforceabi&it$ of the arbitration a#reement. ;hat is $our remed$ a#ainst order of the court which erroneous&$ den$ a motion to dismissEsus%end the court caseErefer the case to ADR in contravention of the a#reement to arbitrate> 0 So $ou can fi&e a %etition for %rohibition or certiorari under Ru&e 6:.

Are the remedies, motion to dismiss or motion to suspend court proceedings and referral to A&R e8clusive or cumulative3 So ta"e note ha na bawa& an# forum sho%%in#.. D

ALTERNATIVE DISPUTE RESOLUTION 2anuar$ 21, 201B

%he general premise is that an arbitration agreement invo$ed in a timely manner precludes court action, does this mean that the court is automatically precluded from ta$ing cogni;ance of the case3 %a$e note that at this point the court has no jurisdiction yet. !a"e note here, the court on&$ ma"es a %rima facie determination on the e?istence, va&idit$, or enforceabi&it$ of the arbitration a#reement. So if the court ma"es that %rima facie determination, the %arties wi&& be referred to arbitration. So now, the %arties are referred to arbitration before the arbitra& tribuna& and the %arties raises the issue of arbitra& tribuna& and the arbitra& tribuna& ma"es a ru&in# on the Fuestion that it does not have 8urisdiction. )efore the arbitral tribunal, the issue of its jurisdiction is being 5uestioned by the parties and now the arbitral tribunal ma$es a ruling on the preliminary 5uestion that indeed it does not have jurisdiction, what is now your remedy3 So it wi&& be reverted to the court, based on ru&e 3.12, 8ust read unti& 3.17 c&assH So if $ou noticed under ru&e 3.16, the contents of the %etition is mandator$ because it must a%%ear %rima facie before the court that indeed the %etition is meritorious. So what is $our remed$ a#ainst said court action> So ta"e note under Ru&e 3.20 where no %etition is a&&owed where the arbitra& tribuna& defers its ru&in# on %re&iminar$ Fuestion re#ardin# its 8urisdiction unti& its fina& award, the a##rieved %art$ cannot see" 8udicia& re&ief to Fuestion the deferra& and must await the fina& arbitra& award before see"in# a%%ro%riate 8udicia& recourse. !a"e note that the arbitra& tribuna& is on&$ a nomina& %art$ in this "ind of %etition. So ta"e note ha that it is the court9s dut$ to determine %rima facie whether or not the controvers$ is sub8ect to arbitration and on&$ after determinin# that the controvers$ is sub8ect to arbitration that the court shou&d sus%end further %roceedin#s in the case and direct the %arties to %roceed to arbitration. 6hat if for e8ample, the court found that there was a valid, e8isting and enforceable arbitration agreement and yet it did not suspend the proceeding, what is your remedy3 0 Answer /etition for certiorari. )n a case, if the court determines that a controvers$ is not sub8ect to arbitration, the court ma$ %roceed to hear and decide the case. !his is %ursuant to the sett&ed %rinci%&e that a court is not barred from inFuirin# into a Fuestion of whether or not it has 8urisdiction over the c&aims of the %art$

that it has no 8urisdiction over the controvers$. !a"e note that our courts are #uided b$ the %rinci%&e of &ibera&it$. !hus it reso&ves on the issue of whether or not the controvers$ is indeed sub8ect to arbitration, the sco%e of arbitration a#reement must be inter%reted &ibera&&$ so that an$ doubt concernin# the sco%e of arbitra& issues is to be reso&ved in favor of arbitration. -urther, this is to encoura#e a&ternative dis%ute reso&ution. )n the case of L' /ower vs. 3a%ita& )ndustries, S3 said that so &on# as a c&ause is susce%tib&e of an inter%retation that covers the asserted dis%ute, an order to arbitrate shou&d be #ranted, since an$ doubt shou&d be reso&ved in favour of arbitration. Are provisional remedies applicable during arbitration proceedings3 !a"e note that the basis of #rant of %rovisiona& remedies is Sec.27 of RA 527:. CRead ru&e : on who ma$ as" interim measures of %rotection..D So under ru&e :.2, a %etition for interim measure of %rotection ma$ be made CaD before arbitration is commenced, CbD after arbitration is commenced, but before the constitution of the arbitra& tribuna&, or CcD after the constitution of the arbitra& tribuna& and at an$ time durin# arbitra& %roceedin#s but, at this sta#e, on&$ to the e?tent that the arbitra& tribuna& has no %ower to act or is unab&e to act effective&$. So it is commenced b$ a %etition. /rovisiona& remedies can be avai&ed of before the court throu#h a %etition fi&ed in the R!3 which has 8urisdiction over the fo&&owin# %&aces a. ;here the %rinci%a& %&ace of business of an$ of the %arties for arbitration is &ocated b. ;here an$ of the %arties who are individua&s resides c. ;here an$ of the acts sou#ht to be en8oined ate bein# %erformed, threatened to be %erformed or not bein# %erformedA or d. ;here the rea& %art$ sub8ect of arbitration, or a %ortion thereof is situated. 6hat are different $inds of provisional remedies that can be availed of3 6hat is an e8 parte temporary order of protection3 0 )t is fi&ed b$ the %art$ throu#h a verified %etition but the court issues it e? %arte, meanin# it is immediate&$ issued based on so&e&$ on the %etition the court finds that there is an ur#ent need to either CaD %reserve the %ro%ert$, CbD %revent res%ondent from dis%osin# of, or concea&in# the %ro%ert$, or CcD %revent the re&ief %ra$ed for from becomin# i&&usor$ because of %rior notice. )t sha&& issue an immediate e?ecutor tem%orar$ order of %rotection and reFuire the %etitioner, within : da$s from recei%t of that order, to %ost a bond to answer for an$ dama#e that res%ondent ma$ suffer as a resu&t of its order. (ow do you distinguish an e8 parte temporary order of protection from an e8 parte %R+3 0 So an e? %arte !R* is issued b$ an e?ecutive 8ud#e, va&id for 62 hrs but an e? %arte !*/ is va&id for 20 da$s. ;ithin 2B hrs the case wi&& be raff&ed to a re#u&ar court and there wi&& be a summar$ hearin# to #ive defendant an o%%ortunit$ to answer whether or not the 62 hr !R* wi&& be e?tended to 16 da$s. So here in !*/, the res%ondent has the o%tion of havin# the !*/ &ifted b$ %ostin# an a%%ro%riate counter0bond as determined b$ the court. ;hat is $our re&ief a#ainst the court action> Read :.10, :.11, :.1BH 6hat is the principle of $ompeten;-$ompeten;3

0 Read ru&e 2.B, thus when the court is as"ed to ru&e on the issue affectin# the com%etenceE8urisdiction of the arbitra& tribuna& on the dis%ute brou#ht before it either before or after an arbitra& tribuna& is constituted, the court must e?ercise 8udicia& restraint so that is the %o&ic$ of the &aw, for the court to e?ercise 8udicia& restraint and defer to the com%etence or 8urisdiction of the arbitra& tribuna& b$ a&&owin# the arbitra& tribuna& the first o%%ortunit$ to ru&e u%on such issues. ;here the court is as"ed to ma"e a determination of whether the arbitration a#reement is nu&& and void, ino%erative or inca%ab&e of bein# %erformed, under this %o&ic$ of 8udicia& restraint, the court must ma"e no more than a %rima facie determination of that issue. ,n&ess the court, %ursuant to such %rima facie determination, conc&udes that the arbitration a#reement is nu&& and void, ino%erative or inca%ab&e of bein# %erformed, the court must sus%end the action before it and refer the %arties to arbitration %ursuant to the arbitration a#reement.

6ho appoints the arbitrators3 6hat if it is an institutional arbitration, who appoints the arbitrators for e8ample if it is before the /*A/3

6hen do you appoint the arbitrator3 0 1efore the commencement of arbitration %roceedin#s.

!a"e note that %arties are free to choose their own arbitrators. !he %arties are e?%ected to a%%oint their arbitrators who are re#arded as honest and com%etent. !he abi&it$ to choose an arbitrator is es%ecia&&$ attractive to a forei#n %art$ who ma$ harbour reservations about the neutra&it$ of a home court 8ud#e since the %arties are #iven the free hand in choosin# the arbitrators, the outcome of the case becomes more acce%tab&e. 6hat re the 5ualifications and dis5ualifications of an arbitrator3 !a"e note that in both )3A and DA, it is not necessar$ that the arbitrators has an$ s%ecia& trainin# or e?%erience or be admitted to the /hi&i%%ine 1ar. Are foreigners allowed to act as arbitrators3 0 )n )3A, $es. )n DA, it de%ends u%on the %arties.

*f the parties failed to provide in reaching an arbitrator, what is your remedy3 6ho is this appointing authority3 6hen may the court act as an appointing authority3 !a"e note that %etition for a%%ointment of arbitrator ma$ be fi&ed at the o%tion of the %etitioner in the R!3 CaDwhere the %rinci%a& %&ace of business of an$ other %arties is &ocated, CbD if an$ of the %arties are individua&s, where those individua&s reside, or CcD in the Nationa& 3a%ita& Re#ion. ,nder ru&e 6.7, forum sho%%in# here is %rohibited. !here is forum sho%%in# when there is a %endin# %etition in another court to dec&are the arbitration a#reement ine?istent, inva&id, unenforceab&e, on account of which the res%ondent fai&ed or refused to %artici%ate in the se&ection and a%%ointment of a so&e arbitrator or to a%%oint a %art$0nominated arbitrator, the %etition fi&ed under this ru&e sha&& be dismissed. Read ru&e 6.5. so ta"e note ha that an order a%%ointin# an arbitrator sha&& be immediate&$ e?ecutor but an order den$in# the a%%ointment sha&& be sub8ect of a motion for reconsideration, a%%ea& or certiorari.

*f you want to 5uestion the appointment of an arbitrator, on what grounds3 6hat is the first body that can entertain the challenge3

ALTERNATIVE DISPUTE RESOLUTION 2anuar$ 27, 201B

6hat is the remedy against the order of the court who refused to suspend the proceedings and instead ta$es cogni;ance of the case3 0 So $ou have to fi&e first a motion for reconsideration. ;h$ is an a%%ea& not avai&ab&e> !hat9s because of the order of denia& is mere&$ an inter&ocutor$ order, remember $ou have to fi&e 'R before $ou can #o to certiorari and a%%ea& is not avai&ab&e at that sta#e.

!a"e note that in both domestic and )3A, it #ive the %arties the freedom to decide on the %rocedure for cha&&en#in# an arbitrator. )n the absence of an a#reement, a %art$ who intends to cha&&en#e an arbitrator is reFuired to send a written statement of the reasons for the cha&&en#e to the arbitra& tribuna& and if the said cha&&en#e is not successfu&, the said %art$ ma$ reFuest the a%%ointin# authorit$ to decide on the cha&&en#e. So who a%%oints the arbitrators> )t is the %arties, so %arties are free to a#ree on the %rocedure of a%%ointin# arbitratorEs. %he general premise is that the party is free to agree on a procedure of appointing the arbitrator<s, what happens if the party fails to come up w< an agreement on the appointment of arbitrator<s3 )n an arbitration wE three arbitrators, each %art$ sha&& a%%oint one arbitrator, and the two arbitrators a%%ointed sha&& a%%oint the third arbitrator. )n an arbitration wE a so&e arbitrator, if the %arties are unab&e to a#ree on the arbitration then the said arbitrator sha&& be a%%ointed b$ the court, $un na $un# a%%ointin# authorit$. So the basis there is ru&e 6. /an you challenge the appointment of arbitrators and on what grounds3

6hat is the procedure if you want to challenge the appointment of the said arbitrator3 !a"e note that the %arties are free to a#ree on a %rocedure in cha&&en#in# an arbitrator. So fai&in# on such a#reement, the %art$ who intends to cha&&en#e an arbitrator within 1: da$s send a written statement of the reasons for the cha&&en#e before the arbitra& tribuna& after becomin# aware of the constitution of the arbitra& tribuan&. ;ho decides on the cha&&en#e> )t is the arbitra& tribuna& un&ess the cha&&en#e arbitrators withdraw from his office or the other %art$ a#rees to the said cha&&en#e. 6hat if the challenge under the procedure agreed by parties was not successful or the arbitral tribunal rejects the challenge3 0 So the$ ma$ see" court intervention, the %art$ ma$ as" the court to act as an a%%ointin# authorit$ under ru&e 6

6hat if the appointing authority fails or refuses to act on the said challenge3 0 So $our remed$ is under ru&e 6.2, the a##rieved %art$ ma$ renew the cha&&en#e in court.

CRead 6.2, 6.BD So ta"e note ha that the nationa&it$ or %rofessiona& Fua&ification of an arbitrator is not a #round to cha&&en#e an arbitrator un&ess the %arties have s%ecified in their arbitration a#reement a nationa&it$ andEor %rofessiona& Fua&ification for a%%ointment as arbitrator. CRead 6.:D ta"e note that it is a condition %recedent that $ou have to raise this before the a%%ointin# authorit$ otherwise, the court ma$ motu %ro%rio dismiss $our %etition. CRead 6.6D !a"e note that an$ order of the court reso&vin# the %etition sha&& be immediate&$ e?ecutor and sha&& not be the sub8ect of a motion for reconsideration, a%%ea&, or certiorari. .ow man$ arbitrators can the %arties a%%oint> !a"e note that the %arties are free to determine the number of arbitrators. -ai&in# such determination, the number of arbitrators sha&& be 3. !here can be additiona& arbitrators a%%ointed b$ the %arties but the same must be made in writin#. So in the case of 'a#e&&an 3a%ita& 'ana#ement vs. Josa, 3:: scra 1:6, S3 he&d that the a#reementEcom%osition of the arbitra& %ane& is inva&id. !he em%&o$ee cou&d not receive 8ustice and fairness in the arbitration %roceedin#s from the %ane& of arbitrators because both cor%orate entities that re%resent the same interest shou&d be considered as one and shou&d be entit&ed to on&$ one arbitrator to re%resent them in arbitration. Lia(ility or ,rong decisions &oes an arbitrator incur any liability3 /an an arbitrator be held civilly liable for judicial error3 0 @es, that is #ross&$ %atent, de&iberateEma&icious and incur wE evident bad faith.

6hen is arbitral tribunal deemed constituted3 6here does the place of arbitration ta$e place3 0 )t is the %&ace so desi#nated b$ the %arties to the arbitration a#reement.

6hat if it is */A3 !a"e note that the arbitra& tribuna& ma$ determine the %&ace of arbitration havin# re#ard to the circumstance of the %&ace inc&udin# the convenience of the %arties. !he arbitra& tribuna& ma$ be in an$ %&ace if considered a%%ro%riate for consu&tation amon# its members for hearin# witnesses, e?%erts, #oods or other documents. !he %&ace chosen b$ the arbitra& tribuna& must have some re&evance to the contract and it shou&d not be sub8ect to one or the other %art$ to the contract s%ecia&&$ in the terms of the %&eadin#s and in %resentin# his witnesses. 6hen does arbitral proceeding commence3 0 )t commences on the da$ on which the reFuest for the dis%ute to be refer to arbitration is received b$ the res%ondent.

(ow about the language to be used in arbitration proceedings3 6hat are the rules regarding the law on procedure3 !he arbitra& tribuna& is #iven su%%&ementar$ discretion on how to conduct arbitration %roceedin#s inc&udin# the %ower to determine the admissibi&it$, re&evance, materia&it$ and wei#ht of an$ evidence. Another &imitation is the due %rocess, it means that a. !he %arties are #iven the chance to be heard of and submit the evidence b. !he tribuna& must consider the evidence %resented c. !he tribuna& must have somethin# to su%%ort its decision d. !he evidence that su%%ort the decision must be substantia&. e. !he decision rendered on the evidence %resented or must be contained in the record of the %roceedin# f. !he decision must be rendered in such a manner that the %arties "nows the issue invo&ved and the reason for the decision rendered.

)s the arbitra& tribuna& reFuired to observe the ru&es of court> So it is not strict&$ fo&&owed. *s hearing before the arbitrators mandatory in */A and &A3 So if )3A, the #enera& ru&e is that hearin# is conducted e?ce%t when the %arties a#ree in writin# to submit the dis%ute b$ other than ora& ru&e or that the %arties a#rees that no hearin# sha&& be he&d instead the$ wi&& 8ust submit %a%ers or %&eadin#s before the arbitra& tribuna&. /an arbitrators issue subpoena3 0 @es, so this is based on sec. 1B of the arbitration &aw. the &eadin# case here is .ome 1an"ers vs. 3A. !he S3 said that the e?ercise of said %ower is without %re8udiced to the ri#ht of a %art$ to fi&e a %etition in court to safe#uard an$ matter which is the sub8ect dis%ute in arbitration.

Role o ar(itrators So the ru&e on im%artia&it$ does not mean that arbitrators are not a&&owed to ta"e an active ro&e in the

%roceedin#s before them. !a"e note, in courts durin# hearin#s, 8ud#es are a&&owed not to ta"e active %art but ma"e c&arificator$ Fuestions %ero he shou&d not be in active ro&e in a sense that his im%artia&it$ wi&& be %ut in Fuestion dba $un# i%a &abas n# 8ud#e na s$a $un# &aw$er n# isan# %art$, so that is a&read$ %rohibited. Another %oint is that it is the 8ud#e who contro&s the hearin# and not the %arties. !a"e note that the arbitrator is the so&e 8ud#e of the re&evanc$ and materia&it$ of the evidence offered and he is not bound b$ ru&es of court. So dba n#a it is not necessar$ for him to be a &aw$er, so how can he ru&e on the re&evanc$ and materia&it$ of the evidence offered if he is not a &aw$er> So the$ can reFuire or even ob&i#e e?%erts to ru&e or he&% them ru&e on the materia&it$ and re&evanc$ of the evidence submitted. )t is under art. 26 of the mode& &aw, in )3A, un&ess the %arties have a#reed otherwise, the arbitra& tribuna& ma$ a%%oint e?%erts to re%ort to it on s%ecific issues that the arbitra& tribuna& ma$ deem a%%ro%riate. )n domestic arbitration, e?%erts ma$ be a%%ointed even if RA 527: has not made art. 26 of the mode& &aw a%%&$ to domestic arbitration. 6hen can a party be declared in default3 0 )n DA, if the %art$ who after due notice fai&s to be %resent durin# the hearin# or fai&s to obtain ad8ournment thereof.

ALTERNATIVE DISPUTE RESOLUTION -ebruar$ 17, 201B

!a"e note, in both domestic and internationa& commercia& arbitration, the arbitra& tribuna& can issue %rovisiona& remedies. So under the mode& &aw, the basis there is artic&e 16, at the reFuest of an$ %art$ or an$ %art$ im%airin# an$ measure of %rotection in res%ect of the sub8ect matter of the dis%ute. !a"e note that the %ower in both RA 7661 and 'ode& &aw is mere&$ %reservative in character and %ertains on&$ to the sub8ect matter of the dis%ute. ;hen can $ou avai& of %rovisiona& remedies before the court> 1ecause $ou can avai& of %rovisiona& remedies after the constitution of the arbitra& tribuna& and durin# the arbitration %roceedin#s and at an$ time before the renderin# of the award. .ow about before the courts> 6hat if the party disregards the relief issued by the arbitral tribunal, what is your remedy3 0 !o a%%&$ before the court for an assistance to im%&ement. .

(ow about damages, can you claim for damages if the party disregards the relief issued by the arbitral tribunal3 (ow about attorneys fees3 0 A %art$ who does not com%&$ with the order sha&& be &iab&e -*R ALL DA'A4(S, resu&tin# from the non0 com%&iance inc&udin# a&& e?%enses and reasonab&e attorne$s fees.

Arbitration is deemed a %ractice of &aw. An individua& who is not a member of the /hi&i%%ine bar ma$ re%resent an$ %art$ for both internationa& commercia& and domestic arbitration but he is not deemed to be en#a#ed in the %ractice of &aw and he cannot a%%ear before an$ courts because he is not a member of the /hi&i%%ine bar. /an arbitral tribunal render default awards, why3 (ven if the %art$ is dec&ared in defau&t before the arbitra& tribuna&, the arbitrators wi&& sti&& reFuire other

%art$ to submit such evidence as the$ ma$ reFuire for ma"in# an award, that9s wh$ there is no defau&t awards before the arbitra& tribuna&. /an the arbitral tribunal render separate or partial awards3 So there can be se%arate or %artia& awards a%%&$in# ru&e 36, section : of the ru&es of 3ourt on Se%arate 8ud#ment b$ ana&o#$. (ow about the contents3 So it is not &imited to s%ecific %erformance because arbitration is contractua& in nature. As &on# as the award derives its essence from the contract and is based on the %&ausib&e inter%retation of contract, the same ma$ be awarded. !a"e note that arbitrators ma$ even award %unitive dama#es as &on# as there is no &imitation, even monetar$ dama#es. So the arbitrators can on&$ decide on matters e?%ress&$ submitted to them, the$ cannot reso&ve issues be$ond the sco%e of the submission a#reement. .ow about in that case where it was a&&owed in the S3> So it can be inter%reted &ibera&&$ in order to %ut an end on the issue. Ti'e to render a,ard )f it is )3A, no time frame as the arbitra& tribuna& is #iven considerab&e &eewa$ un&ess the %arties %rovide a %eriod in which the tribuna& must render its award. )f it is DA, it must render its award in the %eriod of time %rescribed b$ the %arties and in the absence of a#reement, within 30 da$s after c&osin# of hearin#s. -orms of Award ;e have to distin#uished between art. 31 of the mode& &aw and sec. 20 of the arbitration &aw. ,nder the mode& &aw, the form of award sha&& be 1. in writin#, si#ned b$ the arbitratorEs 2. it must state the reasons u%on which it is based un&ess the %arties a#reed that no reasons are to be #iven or the award is on the a#reed terms or amicab&e sett&ement 3. it sha&& state its %&ace and date of arbitration when the award is deemed made ,nder the arbitration &aw, the form of the award is that it must be in writin#, and si#ned and ac"now&ed#ed b$ a ma8orit$ of the arbitrators. Sec. 20 reFuires it to be ac"now&ed#ed before a notar$ %ub&ic.

(ow about under RA !"#, should the arbitral award be subscribed or notified before the notary public3

So it is a&read$ dis%ensed with, so the ru&in# in 4ro#un vs. NA/*3*R wou&d not a%%&$ to arbitra& award after the effectivit$ of RA 527: in both DA and )3A.

%he law re5uires that the awards must be based on facts and law, can this re5uirement be dispensed with3

)f the %arties a#reed to

La, on -erits So this a%%&ies to both DA and )3A. So ta"e note that the fore#oin# ru&es reco#niGe that the a#reement of the %arties as e?%ressed in their contract is the %aramount consideration in reso&vin# an$ dis%ute arisin# in the contract. So the choice of a%%&icab&e &aw in )3A wi&& be res%ected un&ess the bod$ of &aw chosen is 1. 3ontrar$ to %ub&ic %o&ic$ of the /hi&i%%ines 2. 3ontrar$ to the universa&&$ acce%ted %rinci%&e of mora&it$ 3. /ena& character B. /ure&$ fisca& or administrative in character :. ;ou&d wor" undeniab&e in8ustice to the citiGens or residents of the /hi&i%%ines 6. ;ou&d wor" a#ainst the vita& interest or nationa& securit$ of the /hi&i%%ines. Are the parties allowed to settle their differences during the conduct of arbitration proceedings3 0 So it is a sett&ement award, the %arties can sett&e even durin# the arbitration %roceedin#s, the arbitra& tribuna& sha&& terminate the %roceedin#s if reFuested b$ the %arties and not ob8ected to b$ the arbitra& tribuna&, record the sett&ement in the court of arbitra& award on a#reed terms or sett&ement awards. *s correction of an award rendered by arbitral tribunal allowed before the body3 0 So on&$ errors in com%utation, an$ c&erica& or t$%o#ra%hica& errors or an$ errors of simi&ar nature but with %rior notice to the other %art$.

(ow about in domestic arbitration3 6hat is the remedy if you want the error to be corrected3 0 !he remed$ is %rovided under ru&e 11 a%%&ies to domestic arbitra& award.

!a"e note that correction of arbitra& tribuna& under )3A is a&&owed b$ the bod$, the basis is errors in com%utation, an$ c&erica& or t$%o#ra%hica& errors or an$ errors of simi&ar nature but with %rior notice to the other %art$. )f it is DA, there can be no correction because the moment the arbitra& tribuna& renders an award, it &oses 8urisdiction over the same, so $our remed$ is 8udicia& in nature, to fi&e %etition to correct or modif$ an arbitra& award and the basis is Ru&e 11. !he #rounds under Ru&e 11 on correction or modification of an arbitra& award in DA, is broader in sco%e than in )3A. *inality o A,ard )f DA, u%on &a%se of 30 da$s after the award is de&ivered to the %arties or to their &aw$ers if the$ are re%resented b$ counse&. )f )3A, after 3 months from recei%t of the award. 3an attorne$9s fees as dama#es be awarded> !he arbitrator shou&d not reFuire the &osin# %art$ to reimburse the winnin# %art$ &e#a& e?%enses un&ess

the &osin# %art$ acted in bad faith in institutin# the arbitra& %roceedin#s. .ow about confidentia&it$ of the award> !a"e note that the arbitra& %roceedin#s are he&d in %rivate and a&& %&eadin#s are treated as confidentia&. Awards are not %ub&ished un&ess the %arties a#ree that the said award be %ub&ished. !he ru&e on confidentia&it$ inc&udes the records, evidence and arbitra& awards. )t sha&& be considered confidentia& and not %ub&ished as a #enera& ru&e un&ess 1. !he %arties consent to its %ub&ication 2. )t has for its &imited %ur%ose of disc&osin# to the court the re&evant document 3. Disc&osure is needed to be made in connection to an action or a%%ea& %endin# before the said court. 1efore we &eave cha%ter +, the &eadin# case on e?%erts is .ome 1an"ers Savin#s vs. 3A 4R 11:B12.

-arch 3& #453

;e &earned &ast meetin# that there can be a correction, modification of an arbitra& award before the arbitra& tribuna& if it is )nternationa& 3ommercia& Arbitration. (ow about if it is domestic arbitration, can the arbitral tribunal correct the award3 So No, $our recourse is before the R!3 because an award rendered b$ the arbitra& tribuna& in domestic arbitration becomes fina& after the &a%se of 30 da$s after the award is de&ivered to the %arties. !a"e note that the moment the arbitra& tribuna& renders an award in domestic arbitration is &oses its 8urisdiction. !hat9s wh$ if a %art$ to a domestic arbitration wishes to have the award corrected, set aside or modified then $our recourse is throu#h the courts under Ru&e 11. ;hat are the #rounds for the correction of an arbitra& award> /&ease read ru&e 11HHH

1hapter VI Recourse against A,ard !he #enera& ru&e is that an arbitration a#reement ma$ %rovide that the arbitrators award be fina&, non0 a%%ea&ab&e and e?ecutor$. So coro&&ar$ to this ru&e is that an a#reement to refer a dis%ute to arbitration sha&& be that the arbitra& award be fina& and bindin#. !hus, a %art$ is %rec&uded from Fuestionin# the merits of the arbitra& award b$ fi&in# an a%%ea& or throu#h certiorari. !a"e note, this sti%u&ation is va&id without %re8udice to the %rovisions of artic&es 2037, 2035 and 20B0 of the civi& code. /&ease read art. 2037, 2035HH So artic&e 20B0 %rovides that after &iti#ation has been decided b$ fina& 8ud#ment, a com%romise shou&d have been a#reed u%on, either or both %arties bein# unaware of the e?istence of the fina& 8ud#ment, the com%romise ma$ be rescinded. A#ain, the #enera& ru&e is that decision of arbitrators if there is arbitration a#reement, it is fina&, non0a%%ea&ab&e and e?ecutor$. .owever, these decisions ma$ be sub8ect to 8udicia& review as found under artic&es 2037, 2035 and 20B0 of the civi& code as we&& as sections 2B and 2: of the arbitration &aw in re&ation to ru&e 11 of $our s%ecia& ADR ru&es.

So what are the s%ecific #rounds wherein an arbitration award ma$ be sub8ect to 8udicia& review under sec. 2: of arbitration &aw> /&ease read sec. 2:HHH. o" so sec. 2: %rovides for #rounds in correctin# an arbitra& award in domestic arbitration, that is in re&ation to ru&e 11. B. So if $ou wish an arbitra& award in domestic arbitration be corrected $ou shou&d fi&e that not &ater than 30 da$s from the recei%t of the %art$ of the said award. .ow about in sec. 2B> /&ease read sec. 2BH. o" so sec. 2B refers to #rounds for vacatin# an arbitra& award in domestic arbitration. !hese #rounds invo&ves the merits in arbitra& award whi&e the #rounds for correction an arbitra& award under sec. 2: do not invo&ve the merits of an arbitra& award, that9s wh$ correction &an# c$a com%ared sa vacation of an arbitra& award. So when do you vacate an arbitral award in domestic arbitration3 0 )t shou&d be not &ater than 30 da$s from recei%t of the arbitra& award. A %art$ ma$ %etition the court to vacate the award. So what is the form of %etition> 0 ,nder ru&e 11. :, an a%%&ication to vacate an arbitra& award sha&& be in form of a %etition to vacate or as a %etition to vacate in o%%osition to a %etition to confirm the same award. !a"e note it is throu#h a verified %etition. An a%%&ication to correctEmodif$ an arbitra& award ma$ be inc&uded in a %etition to confirm an arbitra& award or in a %etition to vacate in o%%osition to confirm the same award. !a"e note, as an a&ternative to the dismissa& of a 2nd %etition or confirmation, vacation or correction, modification of an arbitra& award fi&ed in vio&ation of the non0forum sho%%in#, the court ma$ a&&ow the conso&idation of the two %roceedin#s in one court and in one case. ;hat are the contents of the %etition> ,nder ru&e 11.6, ta"e note it is mandator$. !he %etition must state the fo&&owin# a. !he addresses of the %arties and an$ chan#e thereof b. !he 8urisdictiona& issues raised b$ a %art$ durin# arbitration %roceedin#s c. !he #rounds re&ied u%on b$ the %arties in see"in# the vacation of the arbitra& award whether the %etition is a %etition for the vacation or settin# aside of the arbitra& award or a %etition in o%%osition to a %etition to confirm the award, and d. A statement of the date of recei%t of the arbitra& award and the circumstances under which it was received b$ the %etitioner.

!o#ether with that, $ou must attach to the %etition

a. An authentic co%$ of the arbitration a#reement b. An authentic co%$ of the arbitra& award c. A certification a#ainst forum sho%%in# e?ecuted b$ the a%%&icant in accordance wE sec.: of ru&e 6 of ru&es of court, and

d. An authentic co%$ or authentic co%ies of the a%%ointment of an arbitra& tribuna&.

So for e8ample you filed a petition to vacate or set aside an award before the R%/ and you raised other grounds, other than those provided by the arbitration law, should the court entertain your petition3 0 !he #enera& ru&e is that the court sha&& disre#ard an$ other #rounds other than those enumerated under the &aw un&ess the #rounds raise amounts to vio&ation of %ub&ic %o&ic$. 6here is the venue if you want your award be corrected or vacated3 0 )t ma$ be fi&ed with the R!3 havin# 8urisdiction over the %&ace in which one of the %arties is doin# business, where an$ of the %arties reside or where arbitration %roceedin#s were conducted under ru&e 11. 3. So what must the court do> 3ourt action under ru&e 11.5, ta"e note that un&ess a #round to vacate an arbitra& award under ru&e 11.: is fu&&$ estab&ished, the court sha&& confirm the award. ;h$> 1ecause an arbitra& award sha&& en8o$ the %resum%tion that it was made and re&eased in due course of arbitration and is sub8ect to confirmation b$ the court. !a"e note that in reso&vin# the %etition or %etition in o%%osition thereto the court sha&& either confirm or vacate the arbitra& award. !he court sha&& not disturb the arbitra& tribuna&s determination of facts and or inter%retation of &aw. )n a %etition to vacate an award or in a %etition to vacate an award in o%%osition to a %etition to confirm the award, the %etitioner ma$ simu&taneous&$ a%%&$ with the court to refer the case bac" to the same arbitra& tribuna& for the %ur%ose of ma"in# the new or revised award or to direct a new hearin#, or in the a%%ro%riate case, order the new hearin# before a new tribuna&, the members of which sha&& be chosen in the manner %rovided in the arbitration a#reement. )n referrin# the case bac" to the arbitra& tribuna& or to a new arbitra& tribuna&, the court ma$ not direct it to revise its award in a %articu&ar wa$, or to revise its findin#s of fact or conc&usions of &aw or otherwise encroach u%on the inde%endence of an arbitra& tribuna& in the ma"in# of a fina& award. So for e8ample, you file a petition to vacate an award, before the court and your ground is that the arbitral tribunal committed errors of fact or law or errors of fact and law, should the court entertain your petition to vacate3 0 No, the court shou&d not substitute its 8ud#ment for that of the arbitra& tribuna&.

!a"e note that the 8ud#ment of the R!3 in domestic arbitration %roceedin#s either confirmin# the award or vacatin# or modif$in# or correctin# the award is an order or decision entered u%on an award which is a&so deemed an order made in a %roceedin# under sec. 25 of arbitration &aw. So the 2 t$%es of orders contem%&ated under sec. 25 of arbitration &aw 1. 2ud#ment entered u%on an award, is the 8ud#ment confirmin#, vacatin#, correctin# or modif$in# the arbitra& award. 2. *rder made in a %roceedin# under the act which inc&udes an$ order other than the first t$%e of order

which fina&&$ determines a s%ecific as%ect of %art of the controvers$. So what is your remedy against the order of the court correcting, vacating or modifying a domestic arbitral award3 1. 'R, within 1: da$s from recei%t of the order. )f 'R is denied, what is $our ne?t remed$> 2. A%%ea& before the 3A wEn 1: da$ %eriod. 3. 3ertiorari !a"e note, ba"it hindi %wede ma# a%%ea& "a ta%os ma#fi&e "a n# %etition for certiorari> So the remedies of a%%ea& and certiorari are a&ternative since under the s%ecia& ADR ru&es recourse to one %rec&udes the other.

A,ards in international co''ercial ar(itration !a"e note, within 3 months after the recei%t of the award, a %art$ ma$ a%%&$ to the court for settin# aside the award and after the 3month %eriod, the award attains fina&it$. So if DA, after 30 da$s, fina& na an# awardA if )3A after 3 months. /&ease read ru&e 12.2H.. ta"e note ha, the dismissa& of the %etition to set aside an arbitra& award for bein# time0barred sha&& not automatica&&$ resu&t in the a%%rova& of the %etition fi&ed therein and in o%%osition thereto for reco#nition and enforcement of the same award. -ai&ure to fi&e the %etition to set aside sha&& %rec&ude a %art$ from raisin# #rounds to resist enforcement of the said award. Venue A %etition to reco#niGe or set aside an arbitra& award ma$, at the o%tion of the %etitioner, be fi&ed with the R!3 a. where arbitration %roceedin#s were conducted b. where an$ of the assets to be attached or &evied u%on is &ocated c. where the act to be en8oined wi&& be or is bein# %erformed d. where an$ of the %arties to arbitration resides or has its %&ace of businessA or e. in the Nationa& 3a%ita& 2udicia& Re#ion ;hat are the #rounds to set aside or resist enforcement if it is )3A, #rounds to vacate> /&ease read ru&e 12.B, 12.:H.. so ru&e 12.: must be made throu#h a %etition to set aside and not throu#h a %etition for review or certiorari or otherwise. !a"e note of the contents of the %etition and ru&e 12.11 re#ardin# sus%ension of %roceedin#s. /&ease read ru&e 12.11, 12.13H %&ease ta"e note ha sa 8ud#ment of the court in domestic arbitration, doon un&ess a #round to vacate an arbitra& award is fu&&$ estab&ished, the court sha&& confirm the award, so automatic. )f it is internationa& commercia& arbitration, it is not automatic for the court to confirm the award un&ess there is a %etition to reco#niGe and enforced the arbitra& award fi&ed in o%%osition to the %etition to set aside. !a"e note the standards of 8udicia& review, the &eadin# case of Asset /rivatiGation vs. 3A, the courts wi&& not review the fina& findin#s of &aw and fact contained in an award, it wi&& not underta"e to substitute their 8ud#ment

for that of the arbitrators since an$ other ru&e wou&d ma"e the award the commencement and not the end of &iti#ation. *ther cases, the case of 3ar%io vs. Su&u Resources, S3 ru&ed that even if the review b$ the 3A of 3)A3 decisions inc&uded Fuestions of fact and &aw, review of factua& findin#s were warranted on&$ when such factua& findin#s were cha&&en#ed to have been made in #rave abuse of discretion. )n another case of Nationa& Stee& 3or%oration vs. R!3 Lanao de& Norte, there is re#u&arit$ in the %erformance of officia& functions and the same is %resumed and the com%&ainin# %art$ has the burden of %rovin# the e?istence of an$ of the #rounds for the vacatin# the award.

En orce'ent o Philippine Ar(itral A,ards ;hen we sa$ /hi&i%%ine arbitra& awards, it refers to awards rendered in domestic arbitration and internationa& commercia& arbitration. ;h$ is there a necessit$ of 8udicia&&$ confirmin# an arbitra& award> 0 *", it reFuires 8udicia& confirmation to be enforceab&e. ;hen confirmed b$ the court, it sha&& be enforced in the same manner as fina& and e?ecutor$ decisions of R!3. So a%%&icab&e 8an $un# ru&e 35 of the ru&es of court which sha&& inc&ude 1. )t sha&& be doc"et as if it was rendered in an action. 2. )t sha&& have the same force and effect of 8ud#ment in an action. 3. )t ma$ be enforced as if it had been rendered in the court in which it was entered. So the #enera& %remise, to be enforceab&e must be 8udicia&&$ confirmed or the %arties ma$ vo&untari&$ im%&ement the award is rendered. So in the &atter, if it is vo&untari&$ im%&emented b$ the %arties, so need to fi&e a 8udicia& confirmation "ase vo&untar$ nah on the %art of the %arties, if not, $ou fi&e a %etition for the confirmation of the award. So if it is domestic arbitration, it is under ru&e 11, confirmation of the award after &a%se of the 30 da$s from recei%t b$ the %etitioner of the arbitra& award because after the &a%se of 30 da$ %eriod the award is a&read$ fina& and e?ecutor$. )f it is internationa& commercia& arbitration, it ma$ be fi&ed at an$time from the recei%t of the award. )f however, a time&$ %etition of an arbitra& award is fi&ed the o%%osin# %art$ must fi&e therein and in o%%osition thereto, the %etition for reco#nition and enforcement of the same award within the %eriod of fi&in# the o%%osition. !a"e note that un&ess the award is modified, vacated or corrected, the court must issue an order confirmin# the domestic award.

Ru&e 15 Ru&e on a%%ea&s !a"e note that the ru&e a%%&ies to other forms of ADR such as Early neutral evaluation Neutral evaluation

Mini-trial Me iation-arbitration !ombination thereof "r any other forms

'otion for reconsideration, when a&&owed> A %art$ ma$ as" the R!3 to reconsider its ru&in# on the fo&&owin# a. that the arbitration a#reement is ine?istent, inva&id or unenforceab&e b. u%ho&din# or reversin# the arbitra& tribuna&s 8urisdiction c. den$in# a reFuest to refer the %arties to arbitration d. #rantin# or den$in# a %art$ an interim measure of %rotection e. den$in# the %etition for the a%%ointment of an arbitrator f. refusin# to #rant assistance in ta"in# evidence

#. HH.So 8ust read the enumerationHH No 'R sha&& be a&&owed from the fo&&owin# ru&in#s of the R!3 a. A %rima facie determination u%ho&din# the e?istence, va&idit$ or enforceabi&it$ of an arbitration a#reement b. An order referrin# the dis%ute to arbitration c. An order a%%ointin# an arbitrator d. An$ ru&in# on the cha&&en#e to the a%%ointment of an arbitrator e. An$ order reso&vin# the issue of the termination of the mandate of an arbitrator f. An order #rantin# assistance in ta"in# evidence.

;hen to move for reconsideration> 0within the non0e?tendib&e %eriod of 1: da$s from recei%t of the Fuestioned ru&in# or order and there is no second 'R a&&owed. Ru&e 15.6, no a%%ea& or certiorari on the merits of an arbitra& award. An a#reement to refer the dis%ute to arbitration sha&& mean that the arbitra& award sha&& be fina& and bindin#. 3onseFuent&$, a %art$ to an arbitration is %rec&uded from fi&in# an a%%ea& or a %etition for certiorari Fuestionin# the merits of an arbitra& award. Ru&e 15.5 %rovides for %rohibited a&ternative remedies that recourse to one remed$ sha&& %rec&ude the recourse to the other. Ru&e 15.10, the ru&e on 8udicia& review on arbitration in the /hi&i%%ines. As a #enera& ru&e, the court can on&$ vacate or set aside the decision of an arbitra& tribuna& u%on a c&ear showin# that the award suffers from an$ infirmities or #rounds for vacatin# an arbitra& award.

A%%ea&s to the 3A is throu#h a %etition for review and sha&& on&$ be a&&owed from the fo&&owin# fina& orders of the R!3, be sure to memoriGe ano $un# m#a fina& orders n# R!3. Cru&e 15.12D ;hen to a%%ea&> 0 ;ithin 1: da$s from notice of the decision of the R!3 or denia& of the %etitioners motion for reconsideration.

Ru&e 15.22, the a%%ea& sha&& not sta$ the award, 8ud#ment, fina& order or reso&ution sou#ht to be reviewed un&ess the 3A directs otherwise u%on such terms as ma$ deem 8ust. !a"e note that the %art$ a%%ea&in# the decision of the court confirmin# arbitra& award is reFuired to %ost a bond e?ecuted in favour of the %revai&in# %art$ eFua& to the amount of the award, that is under ru&e 15.2:.

Special 1i.il Action or 1ertiorari So it is before the 3A, not the S3. 2ust read those orders of the court under ru&e 15.26. ;hen to fi&e> ;ithin 1: da$s from notice of the 8ud#ment, order or reso&ution sou#ht to be annu&&ed or set aside and no e?tension of time sha&& be a&&owed. !a"e note ha, the arbitra& tribuna& is a nomina& %art$ in the %etition. ,nder ru&e 15.32, arbitration ma$ sti&& continue des%ite %etition for certiorari. ,nder ru&e 15.33, there is %rohibition a#ainst in8unctions durin# the %endenc$ of the %roceedin#s before the 3A. .ow about review b$ the S3> *", so the review b$ the S3 is mere&$ discretionar$ and not a matter of ri#ht which wi&& be #ranted on&$ for serious and com%e&&in# reasons resu&tin# in #rave %re8udice to the a##rieved %art$. !a"e note ha, a &ar#e number of 8udicia& interventions under the S%ecia& ADR ru&es of court are b$ summar$ %roceedin#s and a&& actions under the S%ecia& ADR ru&es of court are deemed s%ecia& %roceedin#s. ;i&& the revised ru&es of court a%%&$ to the s%ecia& ADR ru&es> 0 N*, ma$ not be resorted to even in a su%%&etor$ ca%acit$.

/&ease read es%ecia&&$ $un# sa ru&e 1, #enera& %rovisions, s%ecia& ru&es of ADR, so read ever$thin#H so an# hindi "o e.sa&i sa e?am $un# enforcement of awards. So ever$thin# e?ce%t ru&e 5, 10, 11, 1B, 1:..8ust read 16 and 16, so a&& other ru&es ) wi&& inc&ude in the e?amH.