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Legal Guidelines for Alternative Dispute Resolution Civil Procedure –

Dean Leonen

Legal Guidelines for


ALTERNATIVE DISPUTE RESOLUTION
Dean Marvic MVF Leonen
General Outline

Generally (a) "Alternative Dispute Resolution


I. Policy System" means any process or
SEC. 2. Declaration of Policy. - it is procedure used to resolve a dispute or
hereby declared the policy of the State to controversy, other than by
actively promote party autonomy in the adjudication of a presiding judge of a
resolution of disputes or the freedom of court or an officer of a government
the party to make their own arrangements agency, as defined in this Act, in
to resolve their disputes. Towards this which a neutral third party
end, the State shall encourage and participates to assist in the
actively promote the use of Alternative resolution of issues, which includes
Dispute Resolution (ADR) as an important arbitration, mediation, conciliation,
means to achieve speedy and impartial early neutral evaluation, mini-trial, or
justice and declog court dockets. As such, any combination thereof;
the State shall provide means for the use
of ADR as an efficient tool and an i. (n) "Early Neutral
alternative procedure for the resolution of Evaluation" means an ADR
appropriate cases. Likewise, the State process wherein parties and
shall enlist active private sector their lawyers are brought
participation in the settlement of disputes together early in a pre-trial
through ADR. This Act shall be without phase to present summaries of
prejudice to the adoption by the Supreme their cases and receive a
Court of any ADR system, such as nonbinding assessment by an
mediation, conciliation, arbitration, or any experienced, neutral person,
combination thereof as a means of with expertise in the subject in
achieving speedy and efficient means of the substance of the dispute;
resolving cases pending before all courts ii. (u) "Mini-Trial" means a
in the Philippines which shall be governed structured dispute resolution
by such rules as the Supreme Court may method in which the merits of
approve from time to time. a case are argued before a
panel comprising senior
II. Application decision makers with or
SEC. 6. Exception to the Application without the presence of a
of this Act. - The provisions of this Act neutral third person after
shall not apply to resolution or settlement which the parties seek a
of the following: (a) labor disputes covered negotiated settlement;
by Presidential Decree No. 442, otherwise iii. (q) "Mediation" means a
known as the Labor Code of the voluntary process in which a
Philippines, as amended and its mediator, selected by the
Implementing Rules and Regulations; (b) disputing parties, facilitates
the civil status of persons; (c) the validity communication and
of a marriage; (d) any ground for legal negotiation, and assist the
separation; (e) the jurisdiction of courts; parties in reaching a voluntary
(f) future legitime; (g) criminal liability; agreement regarding a
and (h) those which by law cannot be dispute.
compromised.
iv. (d) "Arbitration" means a
voluntary dispute resolution
III. Modes of Dispute Resolution
process in which one or more
a. Generally
arbitrators, appointed in
SEC. 3. Definition of Terms. - For
accordance with the
purposes of this Act, the term:

Legal Guidelines for Alternative Dispute Resolution Civil Procedure –
Dean Leonen

agreement of the parties, or mediation and whose consent


rules promulgated pursuant to is necessary to resolve the
this Act, resolve a dispute by dispute;
rendering an award;
v. (t) "Mediation-Arbitration" c. (z) "Non-Party Participant" means
or Med-Arb is a step dispute a person, other than a party or
resolution process involving mediator, who participates in a
both mediation and arbitration; mediation proceeding as a witness,
resource person or expert;

d. (cc) "Roster" means a list of persons


IV. Participants qualified to provide ADR services as
a. Who conducts neutrals or to serve as arbitrators.
i. (r) "Mediator" means a
person who conducts
mediation;
ii. (e) "Arbitrator" means the
person appointed to render an
award, alone or with others, in
a dispute that is the subject of
an arbitration agreement;
iii. Liabilities and
responsibilities
SEC. 5. Liability of ADR
Provider and Practitioner. -
The ADR providers and
practitioners shall have the
same civil liability for the Acts
done in the performance of
then duties as that of public
officers as provided in Section
38 (1), Chapter 9, Book of the
Administrative Code of 1987.
Admin Code Chapter 9.
Section 38. Liability of
Superior Officers. -
(1) A public officer shall not be
civilly liable for acts done in
the performance of his official
duties, unless there is a clear
showing of bad faith, malice or
gross negligence.

b. Parties
i. (p) "International Party"
shall mean an entity whose
place of business is outside the
Philippines. It shall not include
a domestic subsidiary of such
international party or a
coventurer in a joint venture
with a party which has its place
of business in the Philippines.
ii. (s) "Mediation Party" means
a person who participates in a

Legal Guidelines for Alternative Dispute Resolution Civil Procedure –
Dean Leonen

shall cover voluntary


mediation, whether ad hoc
or institutional, other than
court-annexed. The term
"mediation' shall include
conciliation.
2. court referred
Sec 3(m) "Court-Referred
Mediation" means
mediation ordered by a
court to be conducted in
accordance with the
Agreement of the Parties
when as action is
prematurely commenced in
violation of such
agreement;
Mediation
b. As to source of rules
I. Scope i. Institutional
SEC. 7. Scope. - The provisions of this SEC. 16. Effect of Agreement
Chapter shall cover voluntary mediation, to Submit Dispute to
whether ad hoc or institutional, other than Mediation Under Institutional
court-annexed. The term "mediation' shall Rules. - An agreement to submit
include conciliation. a dispute to mediation by any
institution shall include an
II. Interpretative Rules agreement to be bound by the
SEC. 8. Application and internal mediation and
Interpretation. - In applying construing administrative policies of such
the provisions of this Chapter, institution. Further, an
consideration must be given to the need agreement to submit a dispute
to promote candor or parties and to mediation under international
mediators through confidentiality of the mediation rule shall be deemed
mediation process, the policy of fostering to include an agreement to have
prompt, economical, and amicable such rules govern the mediation
resolution of disputes in accordance with of the dispute and for the
the principles of integrity of determination mediator, the parties, their
by the parties, and the policy that the respective counsel, and nonparty
decision-making authority in the participants to abide by such
mediation process rests with the parties. rules.
In case of conflict between the
III. Kinds institutional mediation rules and
a. As to choice of parties the provisions of this Act, the
i. Voluntary latter shall prevail.
ii. Compulsory
iii. Court related ii. Ad hoc
1. court annexed
Sec 3.(l) "Court-Annexed IV. Place of Mediation
Mediation" means any SEC. 15. Place of Mediation. - The
mediation process parties are free to agree on the place of
conducted under the mediation. Failing such agreement, the
auspices of the court, after place of mediation shall be any place
such court has acquired convenient and appropriate to all parties.
jurisdiction of the dispute;
SEC. 7. Scope. - The V. Parties
provisions of this Chapter a. Legal representation


Legal Guidelines for Alternative Dispute Resolution Civil Procedure –
Dean Leonen

SEC. 14. Participation in


Mediation. - Except as otherwise ii. In relation to discovery
provided in this Act, a party may SEC. 9. Confidentiality of
designate a lawyer or any other Information. - Information
person to provide assistance in the obtained through mediation
mediation. A lawyer of this right shall proceedings shall be subject to
be made in writing by the party the following principles and
waiving it. A waiver of participation or guidelines:
legal representation may be rescinded (c) Confidential Information shall
at any time. not be subject to discovery and
shall be inadmissible if any
VI. Confidentiality adversarial proceeding, whether
a. In general judicial or quasi-judicial,
SEC. 9. Confidentiality of However, evidence or
Information. - Information obtained information that is otherwise
through mediation proceedings shall admissible or subject to
be subject to the following principles discovery does not become
and guidelines: inadmissible or protected from
(a) Information obtained through discovery solely by reason of its
mediation shall be privileged and use in a mediation.
confidential. (f) a mediator may not be called
(b) A party, a mediator, or a nonparty to testify to provide information
participant may refuse to disclose and gathered in mediation. A
may prevent any other person from mediator who is wrongfully
disclosing a mediation subpoenaed shall be reimbursed
communication. the full cost of his attorney's fees
(e) The protections of this Act shall and related expenses.
continue to apply even of a mediator SEC. 11. Exceptions to
is found to have failed to act Privilege. - (b) There is no
impartially. privilege under Section 9 if a
court or administrative agency,
i. Parties covered finds, after a hearing in camera,
Sec 9(d) In such an adversarial that the party seeking discovery
proceeding, the following of the proponent of the evidence
persons involved or previously has shown that the evidence is
involved in a mediation may not not otherwise available, that
be compelled to disclose there is a need for the evidence
confidential information obtained that substantially outweighs the
during mediation: (1) the parties interest in protecting
to the dispute; (2) the mediator confidentiality, and the
or mediators; (3) the counsel for mediation communication is
the parties; (4) the nonparty sought or offered in:
participants; (5) any persons (1) a court proceeding involving
hired or engaged in connection a crime or felony; or
with the mediation as secretary, (2) a proceeding to prove a claim
stenographer, clerk or assistant; or defense that under the law is
and (6) any other person who sufficient to reform or avoid a
obtains or possesses confidential liability on a contract arising out
information by reason of his/her of the mediation.
profession. (c) A mediator may not be
SEC. 11. Exceptions to compelled to provide evidence of
Privilege. - (c) A mediator may a mediation communication or
not be compelled to provide testify in such proceeding.
evidence of a mediation
communication or testify in such iii. In relation to subpoena
proceeding.


Legal Guidelines for Alternative Dispute Resolution Civil Procedure –
Dean Leonen

SEC. 9. Confidentiality of but this exception does not apply


Information. - Information where a child protection matter
obtained through mediation is referred to mediation by a
proceedings shall be subject to court or a public agency
the following principles and participates in the child
guidelines: protection mediation;
(f) a mediator may not be called
to testify to provide information vi. Malpractice
gathered in mediation. A 1. mediator
mediator who is wrongfully (6) sought or offered to
subpoenaed shall be reimbursed prove or disprove a claim or
the full cost of his attorney's fees complaint of professional
and related expenses. misconduct or malpractice
SEC. 11. Exceptions to filed against mediator in a
Privilege. proceeding; or
(c) A mediator may not be 2. party or non-party
compelled to provide evidence of (7) sought or offered to
a mediation communication or prove or disprove a claim of
testify in such proceeding. complaint of professional
misconduct of malpractice
b. Exceptions filed against a party,
i. Record nonparty participant, or
SEC. 11. Exceptions to representative of a party
Privilege. - based on conduct occurring
(a) There is no privilege against during a mediation.
disclosure under Section 9 if
mediation communication is: vii. Discovery
(1) in an agreement evidenced (b) There is no privilege under
by a record authenticated by all Section 9 if a court or
parties to the agreement; administrative agency, finds,
after a hearing in camera, that
ii. Available to or made public the party seeking discovery of
(2) available to the public or that the proponent of the evidence
is made during a session of a has shown that the evidence is
mediation which is open, or is not otherwise available, that
required by law to be open, to there is a need for the evidence
the public; that substantially outweighs the
interest in protecting
iii. Threats confidentiality, and the
(3) a threat or statement of a mediation communication is
plan to inflict bodily injury or sought or offered in:
commit a crime of violence; (1) a court proceeding involving
iv. Crimes a crime or felony; or
(4) internationally used to plan a (2) a proceeding to prove a claim
crime, attempt to commit, or or defense that under the law is
commit a crime, or conceal an sufficient to reform or avoid a
ongoing crime or criminal liability on a contract arising out
activity; of the mediation.
v. Abuse neglect
abandonment exploitation 1. hearing in camera
(5) sought or offered to prove or 2. crime or felony
disprove abuse, neglect, 3. reform or avoid a
abandonment, or exploitation in liability
a proceeding in which a public
agency is protecting the interest c. Extent of Exceptions
of an individual protected by law;


Legal Guidelines for Alternative Dispute Resolution Civil Procedure –
Dean Leonen

(d) If a mediation communication is not At the request of a mediation party, an


privileged under an exception in individual who is requested to serve as
subsection (a) or (b), only the portion of mediator shall disclose his/her
the communication necessary for the qualifications to mediate a dispute.
application of the exception for This Act does not require that a mediator
nondisclosure may be admitted. The shall have special qualifications by
admission of particular evidence for the background or profession unless the
limited purpose of an exception does not special qualifications of a mediator are
render that evidence, or any other required in the mediation agreement or
mediation communication, admissible for by the mediation parties.
any other purpose.
VIII. Agreement
d. Prohibited reporting of mediator a. Form
SEC. 12. Prohibited Mediator i. In writing
Reports. - A mediator may not make a SEC. 17. Enforcement of
report, assessment, evaluation, Mediated Settlement
recommendation, finding, or other Agreement. - The mediation
communication regarding a mediation to shall be guided by the following
a court or agency or other authority that operative principles:
make a ruling on a dispute that is the (a) A settlement agreement
subject of a mediation, except: following successful mediation
(a) Where the mediation occurred or has shall be prepared by the parties
terminated, or where a settlement was with the assistance of their
reached. respective counsel, if any, and
(b) As permitted to be disclosed under by the mediator.
Section 13 of this Chapter. The parties and their respective
counsels shall endeavor to make
VII. Mediator’s Responsibilities the terms and condition thereof
a. Disclosure and conflict of interest complete and make adequate
SEC. 13. Mediator's Disclosure and provisions for the contingency of
Conflict of Interest. - The mediation breach to avoid conflicting
shall be guided by the following operative interpretations of the
principles: agreement.
(a) Before accepting a mediation, an
individual who is requested to serve as a ii. Certification of mediator
mediator shall: (b) The parties and their
(1) make an inquiry that is reasonable respective counsels, if any, shall
under the circumstances to determinate sign the settlement agreement.
whether there are any known facts that a The mediator shall certify that
reasonable individual would consider he/she explained the contents of
likely to affect the impartiality of the the settlement agreement to the
mediator, including a financial or personal parties in a language known to
interest in the outcome of the mediation them.
and any existing or past relationship with
a party or foreseeable participant in the b. Deposit with court
mediation; and (c) If the parties so desire, they may
(2) disclosure to the mediation parties deposit such settlement agreement with
any such fact known or learned as soon the appropriate Clerk of a Regional Trial
as is practical before accepting a Court of the place where one of the
mediation. parties resides. Where there is a need to
(b) If a mediation learns any fact enforce the settlement agreement, a
described in paragraph (a) (1) of this petition may be filed by any of the parties
section after accepting a mediation, the with the same court, in which case, the
mediator shall disclose it as soon as court shall proceed summarily to hear the
practicable. petition, in accordance with such rules of


Legal Guidelines for Alternative Dispute Resolution Civil Procedure –
Dean Leonen

procedure as may be promulgated by the For purposes of this Act, the use of other
Supreme Court. ADR forms shall be governed by Chapter
2 of this Act except where it is combined
c. Enforcement with arbitration in which case it shall
i. Summary procedure likewise be governed by Chapter 5 of this
(c) If the parties so desire, they Act.
may deposit such settlement b. Kinds
agreement with the appropriate i. Third party evaluation
Clerk of a Regional Trial Court of ii. Mini trial
the place where one of the Arbitration
parties resides. Where there is a
need to enforce the settlement I. Governing Law
agreement, a petition may be a. International Commercial
filed by any of the parties with Arbitration
the same court, in which case, b. Domestic Arbitration
the court shall proceed c. Construction Disputes
summarily to hear the petition, II. Kinds and Governing Laws
in accordance with such rules of a. Non commercial
procedure as may be i. Domestic
promulgated by the Supreme ii. International
Court. b. Commercial
SEC. 21. Commercial Arbitration. - An
ii. Possibility of mediation and arbitration is "commercial" if it covers
arbitration matters arising from all relationships of a
1. mediator as sole commercial nature, whether contractual
arbitrator or not. Relationships of a transactions:
(d) The parties may agree any trade transaction for the supply or
in the settlement exchange of goods or services;
agreement that the distribution agreements; construction of
mediator shall become a works; commercial representation or
sole arbitrator for the agency; factoring; leasing, consulting;
dispute and shall treat the engineering; licensing; investment;
settlement agreement as financing; banking; insurance; joint
an arbitral award which venture and other forms of industrial or
shall be subject to business cooperation; carriage of goods
enforcement under or passengers by air, sea, rail or road.
Republic Act No. 876,
otherwise known as the i. International
Arbitration Law, ii. Domestic
notwithstanding the 1. Generally
provisions of Executive SEC. 32. Law Governing
Order No. 1008 for Domestic Arbitration. -
mediated dispute outside of Domestic arbitration shall
the CIAC. continue to be governed by
Republic Act No. 876,
IX. Other forms of ADR otherwise known as "The
a. Referral Arbitration Law" as
SEC. 18. Referral of Dispute to other amended by this Chapter.
ADR Forms. - The parties may agree to The term "domestic
refer one or more or all issues arising in a arbitration" as used herein
dispute or during its pendency to other shall mean an arbitration
forms of ADR such as but not limited to that is not international as
(a) the evaluation of a third person or (b) defined in Article (3) of the
a mini-trial, (c) mediation-arbitration, or a Model Law.
combination thereof. SEC. 33. Applicability to
Domestic Arbitration. -


Legal Guidelines for Alternative Dispute Resolution Civil Procedure –
Dean Leonen

Article 8, 10, 11, 12, 13, 14, SEC. 25. Interpretation of the Act.
18 and 19 and 29 to 32 of - In interpreting the Act, the court
the Model Law and Section shall have due regard to the policy of
22 to 31 of the preceding the law in favor of arbitration. Where
Chapter 4 shall apply to action is commenced by or against
domestic arbitration. multiple parties, one or more of whom
are parties who are bound by the
2. Construction arbitration agreement although the
SEC. 34. Arbitration of civil action may continue as to those
Construction Disputes: who are not bound by such arbitration
Governing Law. - The agreement.
arbitration of construction i. In favor of arbitration
disputes shall be governed ii. However,multiple parties
by Executive Order No.
1008, otherwise known as
the Constitution Industry
Arbitration Law. III. Definition of Commercial Arbitration
SEC. 21. Commercial Arbitration. - An
International Commercial Arbitration arbitration is "commercial" if it covers matters
arising from all relationships of a commercial
I. Adoption of UNCITRAL Model Law nature, whether contractual or not. Relationships
SEC. 19. Adoption of the Model Law on of a transactions: any trade transaction for the
International Commercial Arbitration. - supply or exchange of goods or services;
International commercial arbitration shall be distribution agreements; construction of works;
governed by the Model Law on International commercial representation or agency; factoring;
Commercial Arbitration (the "Model Law") leasing, consulting; engineering; licensing;
adopted by the United Nations Commission on investment; financing; banking; insurance; joint
International Trade Law on June 21, 1985 (United venture and other forms of industrial or business
Nations Document A/40/17) and recommended cooperation; carriage of goods or passengers by
approved on December 11, 1985, copy of which air, sea, rail or road.
is hereto attached as Appendix "A".
IV. Parties
II. Rules of Interpretation a. Representation
a. For model law SEC. 22. Legal Representation in
SEC. 20. Interpretation of Model International Arbitration. - In
Law. - In interpreting the Model Law, international arbitration conducted in the
regard shall be had to its international Philippines, a party may be presented by
origin and to the need for uniformity any person of his choice. Provided, that
in its interpretation and resort may be such representative, unless admitted to
made to the travaux preparatories the practice of law in the Philippines, shall
and the report of the Secretary not be authorized to appear as counsel in
General of the United Nations any Philippine court, or any other quasi-
Commission on International Trade judicial body whether or not such
Law dated March 25, 1985 entitled, appearance is in relation to the arbitration
"International Commercial Arbitration: in which he appears.
Analytical Commentary on Draft Trade i. Maybe a lawyer
identified by reference number A/CN. ii. But if non-lawyer,not
9/264." appear in judicial andquasi
judicial
i. International character
ii. Travaux preparatories V. Confidentiality of Arbitration
iii. Report of SecGen of Proceedings
Uncitral (1985) SEC. 23. Confidential of Arbitration
Proceedings. - The arbitration proceedings,
b. For Act including the records, evidence and the arbitral
award, shall be considered confidential and shall


Legal Guidelines for Alternative Dispute Resolution Civil Procedure –
Dean Leonen

not be published except (1) with the consent of Where the parties have agreed to submit
the parties, or (2) for the limited purpose of their dispute to institutional arbitration
disclosing to the court of relevant documents in rules, and unless they have agreed to a
cases where resort to the court is allowed herein. different procedure, they shall be deemed
Provided, however, that the court in which the to have agreed to procedure under such
action or the appeal is pending may issue a arbitration rules for the selection and
protective order to prevent or prohibit disclosure appointment of arbitrators. In ad hoc
of documents or information containing secret arbitration, the default appointment of an
processes, developments, research and other arbitrator shall be made by the National
information where it is shown that the applicant President of the Integrated Bar of the
shall be materially prejudiced by an authorized Philippines (IBP) or his duly authorized
disclosure thereof. representative.
a. Generally,proceedings Confidential; Model Law Article 6. Court or other
Including records evidence and authority for certain functions of
arbitral award arbitration assistance and supervision
i. Except The functions referred to in articles 11(3),
1. consent of parties 11(4), 13(3), 14, 16(3) and 34(2) shall be
2. disclosing relevant performed by ... [Each State enacting this
documents where model law specifi es the court, courts or,
resort to courts are where referred to therein, other authority
allowed competent to perform these functions.]
b. Power of court to issue protective
order, material prejudice i. Agreement:
i. Secret processes person,authority,institution
ii. Developments ii. National President,IBP
iii. Research
iv. Other information b. If Institution, their rules on
appointment apply
VI. Referral to arbitration SEC. 26. Meaning of "Appointing
SEC. 24. Referral to Arbitration. - A court Authority.". - "Appointing Authority" as
before which an action is brought in a matter used in the Model Law shall mean the
which is the subject matter of an arbitration person or institution named in the
agreement shall, if at least one party so requests arbitration agreement as the appointing
not later that the pre-trial conference, or upon authority; or the regular arbitration
the request of both parties thereafter, refer the arbitration institution under whose rules
parties to arbitration unless it finds that the the arbitration is agreed to be conducted.
arbitration agreement is null and void, Where the parties have agreed to submit
inoperative or incapable of being performed. their dispute to institutional arbitration
rules, and unless they have agreed to a
a. Upon request of one party different procedure, they shall be deemed
b. Except, arbitration agreement is to have agreed to procedure under such
i. Null and void arbitration rules for the selection and
ii. Inoperative appointment of arbitrators. In ad hoc
iii. Incapable of being arbitration, the default appointment of an
performed arbitrator shall be made by the National
President of the Integrated Bar of the
VII. “Appointing Authority” Philippines (IBP) or his duly authorized
a. Who representative.
SEC. 26. Meaning of "Appointing
Authority.". - "Appointing Authority" as c. Functions
used in the Model Law shall mean the i. Appointment of arbitrator
person or institution named in the Model Law Article 11.
arbitration agreement as the appointing Appointment of arbitrators
authority; or the regular arbitration (3) Failing such agreement,
institution under whose rules the
arbitration is agreed to be conducted.

Legal Guidelines for Alternative Dispute Resolution Civil Procedure –
Dean Leonen

(a) in an arbitration with three of the decision rejecting the


arbitrators, each party shall challenge, the court or other
appoint authority specifi ed in article 6 to
one arbitrator, and the two decide on the challenge, which
arbitrators thus appointed shall decision shall be subject to no
appoint the third arbitrator; if a appeal; while such a request is
party fails to appoint the pending, the arbitral tribunal,
arbitrator within thirty days of including the challenged
receipt of a request to do so arbitrator, may continue the
from the other party, or if the arbitral proceedings and make
two arbitrators fail to agree on an award.
the third arbitrator within thirty
days of their appointment, the iv. Termination of arbitrator’s
appointment shall be made, mandate
upon request of a party, by the Article 14. Failure or
court or other authority specifi impossibility to act
ed in article 6; (b) in an (1) If an arbitrator becomes de
arbitration with a sole arbitrator, jure or de facto unable to
if the parties are unable to agree perform his functions or for other
on the arbitrator, he shall be reasons fails to act without
appointed, upon request of a undue delay, his mandate
party, by the court or other terminates if he withdraws from
authority specifi ed in article 6. his offi ce or if the parties agree
ii. Failure to perform act of on the
appointment termination. Otherwise, if a
ModelLaw Art 11(4) Where, controversy remains concerning
under an appointment procedure any of these grounds, any party
agreed upon by the parties, may request the court or other
(a) a party fails to act as authority specified in article 6 to
required under such procedure, decide on the termination of the
or mandate, which decision shall be
(b) the parties, or two subject to no appeal.
arbitrators, are unable to reach (2) If, under this article or article
an agreement expected of them 13(2), an arbitrator withdraws
under such procedure, or from his offi ce or a party agrees
(c) a third party, including an to the termination of the
institution, fails to perform any mandate of an arbitrator, this
function entrusted to it under does not imply acceptance of the
such procedure, any party may validity of any ground referred to
request the court or other in this article or article 12(2).
authority specifi ed in article 6 to
take the necessary measure, 1. no appeal allowed
unless the agreement on the d. If appointing authority cannot
appointment procedure perform action
provides other means for SEC. 27. What Functions May be
securing the appointment. Performed by Appointing
Authority. - The functions referred to
iii. Rule on challenges in Articles 11(3), 11(4), 13(3) and
Article 13. Challenge procedure 14(1) of the Model Law shall be
(3) If a challenge under any performed by the Appointing
procedure agreed upon by the Authority, unless the latter shall fail or
parties or under the procedure of refuse to act within thirty (30) days
paragraph (2) of this article is from receipt of the request in which
not successful, the challenging case the applicant may renew the
party may request, within thirty application with the Court.
days after having received notice


Legal Guidelines for Alternative Dispute Resolution Civil Procedure –
Dean Leonen

i. 3o days from receipt of the parties or determined in accordance


request with paragraph 1 of this section.
ii. court
a. By agreement
VIII. Place of Arbitration b. No agreement
SEC. 30. Place of Arbitration. - The parties i. International:English
are free to agree on the place of arbitration. ii. Domestic: English and
Failing such agreement, the place of arbitration Filipino
shall be in Metro Manila, unless the arbitral c. Discretion of arbitral tribunal
tribunal, having regard to the circumstances of d. Applicability
the case, including the convenience of the i. Written statements, record,
parties shall decide on a different place of evidence
arbitration. e. Power to order translation
The arbitral tribunal may, unless otherwise
agreed by the parties, meet at any place it X. Interim Measures of Protection
considers appropriate for consultation among its a. General rule, who grants
members, for hearing witnesses, experts, or the SEC. 28. Grant of Interim Measure of
parties, or for inspection of goods, other property Protection.
or documents. (a) It is not incompatible with an arbitration
agreement for a party to request, before
a. Initially constitution of the tribunal, from a Court an
i. By agreement interim measure of protection and for the Court
ii. No agreement to grant such measure. After constitution of the
1. Metro Manila arbitral tribunal and during arbitral proceedings,
2. unless arbitral a request for an interim measure of protection or
tribunal decides modification thereof, may be made with the
otherwise arbitral tribunal or to the extent that the arbitral
b. Discretion of arbitral tribunal tribunal has no power to act or is unable to act
The arbitral tribunal may, unless effectively, the request may be made with the
otherwise agreed by the parties, meet at Court. The arbitral tribunal is deemed constituted
any place it considers appropriate for when the sole arbitrator or the third arbitrator
consultation among its members, for who has been nominated, has accepted the
hearing witnesses, experts, or the parties, nomination and written communication of said
or for inspection of goods, other property nomination and acceptance has been received
or documents. by the party making request.

IX. Language of Arbitration i. Before constitution, court


SEC. 31. Language of the Arbitration.
- The parties are free to agree on the
ii. After constitution, when
arbitral tribunal performing
language or languages to be used in the
iii. Exception
arbitral proceedings. Failing such
1. no power to act
agreement, the language to be used shall
2. unable to act
be English in international arbitration, and
effectively
English or Filipino for domestic arbitration,
iv. When arbitral tribunal is
unless the arbitral tribunal shall determine
constituted
a different or another language or
b. Requirements for interim or
languages to be used in the proceedings.
provisional measure
This agreement or determination, unless
otherwise specified therein, shall apply to
any written statement by a party, any
i. Any party may request
hearing and any award, decision or other
Sec 28 b(1) Any party may
communication by the arbitral tribunal.
request that provision relief be
The arbitral tribunal may order that any
granted against the adverse party:
documentary evidence shall be
accompanied by a translation into the
language or languages agreed upon by


Legal Guidelines for Alternative Dispute Resolution Civil Procedure –
Dean Leonen

ii. Basis SEC. 29. Further Authority for


Sec 28 b (2) Such relief Arbitrator to Grant Interim Measure
may be granted: of Protection. - Unless otherwise agreed
(i) to prevent irreparable by the parties, the arbitral tribunal may,
loss or injury: at the request of a party, order any party
(ii) to provide security for to take such interim measures of
the performance of any obligation; protection as the arbitral tribunal may
(iii) to produce or preserve consider necessary in respect of the
any evidence; or subject matter of the dispute following
(iv) to compel any other the rules in Section 28, paragraph 2. Such
appropriate act or omission. interim measures may include but shall
not be limited to preliminary injuction
c. Security directed against a party, appointment of
Sec 28 b(3) The order granting receivers or detention, preservation,
provisional relief may be conditioned upon inspection of property that is the subject
the provision of security or any act or of the dispute in arbitration. Either party
omission specified in the order. may apply with the Court for assistance in
implementing or enforcing an interim
d. Form, in writing with details measures ordered by an arbitral tribunal.
Sec28 b(4) Interim or provisional i. Unless by agreement removed
relief is requested by written application ii. Eg receivership, preliminary
transmitted by reasonable means to the injuction
Court or arbitral tribunal as the case may iii. May be enforced by court
be and the party against whom the relief action
is sought, describing in appropriate detail
the precise relief, the party against whom
the relief is requested, the grounds for the
relief, and evidence supporting the
request.

e. Order binding on parties


Sec 28 b(5) The order shall be
binding upon the parties.

i. Liability for damages,


expenses and attorneys
fees
Sec 28 b (7) A party 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.

f. Request for court assistance


Sec 28 b (6) Either party may
apply with the Court for assistance in
Implementing or enforcing an interim
measure ordered by an arbitral tribunal.

g. Protect subject matter of


controversy


Legal Guidelines for Alternative Dispute Resolution Civil Procedure –
Dean Leonen

1. No person shall be precluded by


Domestic Arbitration reason of his nationality from acting as
an arbitrator, unless otherwise agreed
I. Law Governing by the parties.
SEC. 32. Law Governing Domestic 2. The parties are free to agree on a
Arbitration. - Domestic arbitration shall continue procedure of appointing the arbitrator
to be governed by Republic Act No. 876, or arbitrators, subject to the provisions
otherwise known as "The Arbitration Law" as of paragraphs (4) and (5) of this
amended by this Chapter. The term "domestic article.
arbitration" as used herein shall mean an 52
arbitration that is not international as defined in 3. Failing such agreement,
Article (3) of the Model Law. (a) in an arbitration with three
arbitrators, each party shall appoint
II. Applicability of UNCITRAL Model one arbitrator, and the two arbitrators
Law thus appointed shall appoint the third
SEC. 33. Applicability to Domestic arbitrator; if a party fails to appoint the
Arbitration. - Article 8, 10, 11, 12, 13, 14, 18 arbitrator within thirty days of receipt
and 19 and 29 to 32 of the Model Law and of a request to do so from the other
Section 22 to 31 of the preceding Chapter 4 shall party, or if the two arbitrators fail to
apply to domestic arbitration. agree on the third arbitrator within
thirty days of their appointment, the
a. Referral to court and appointment shall be made, upon
continuance of arbitration request of a party, by the court or
Model Law Article 8 - Arbitration other authority specified in article 6;
agreement and substantive claim (b) in an arbitration with a sole
before court arbitrator, if the parties are unable to
1. A court before which an action is agree on the arbitrator, he shall be
brought in a matter which is the appointed, upon request of a party, by
subject of an arbitration agreement the court or other authority specified in
shall, if a party so requests not later article 6.
than when submitting his first 4. Where, under an appointment
statement on the substance of the procedure agreed upon by the parties,
dispute, refer the parties to arbitration (a) a party fails to act as required
unless it finds that the agreement is under such procedure, or
real and void, inoperative or incapable (b) the parties, or two arbitrators, are
of being performed. unable to reach an agreement
2. Where an action referred to in expected of them under such
paragraph (1) of this article has been procedure, or
brought, arbitral proceedings may (c) a third party, including an
nevertheless be commenced or institution, fails to perform any
continued, and an award may be function entrusted to it under such
made, while the issue is pending procedure, any party may request the
before the court. court or other authority specified in
article 6 to take the necessary
b. Number of arbitrators measure, unless the agreement on the
Article 10 - Number of arbitrators appointment procedure provides other
1. The parties are free to determine means for securing the appointment.
the number of arbitrators. 5. A decision on a matter entrusted by
2. Failing such determination, the paragraph (3) and (4) of this article to
number of arbitrators shall be three. the court or other authority specified in
article 6 shall be subject to no appeal.
c. Procedure for appointment of The court or other authority, in
arbitrators appointing an arbitrator, shall have
Article 11 - Appointment of due regard to any qualifications
arbitrators required of the arbitrator by the
agreement of the parties and to such


Legal Guidelines for Alternative Dispute Resolution Civil Procedure –
Dean Leonen

considerations as are likely to secure i. Justifiable doubts on


the appointment of an independent impartiality or
and impartial arbitrator and, in the independence
case of a sole or third arbitrator, shall ii. No qualifications as
take into account as well the agreed upon by parties
advisability of appointing an arbitrator iii. Periods for challenge
of a nationality other than those of the
parties. e. Procedure for challenge
Article 13 - Challenge procedure
i. No appeal from appointing 1. The parties are free to agree on a
authority procedure for challenging an
5. A decision on a matter entrusted by arbitrator, subject to the provisions of
paragraph (3) and (4) of this article to paragraph (3) of this article.
the court or other authority specified in 2. Failing such agreement, a party
article 6 shall be subject to no appeal. which intends to challenge an
The court or other authority, in arbitrator shall, within fifteen days
appointing an arbitrator, shall have after becoming aware of the
due regard to any qualifications constitution of the arbitral tribunal or
required of the arbitrator by the after becoming aware of any
agreement of the parties and to such circumstance referred to in article
considerations as are likely to secure 12(2), send a written statement of the
the appointment of an independent reasons for the challenge to the
and impartial arbitrator and, in the arbitral tribunal. Unless the challenged
case of a sole or third arbitrator, shall arbitrator withdraws from his office or
take into account as well the the other party agrees to the
advisability of appointing an arbitrator challenge, the arbitral tribunal shall
of a nationality other than those of the decide on the challenge.
parties. 3. If a challenge under any procedure
agreed upon by the parties or under
d. Grounds for challenge the procedure of paragraph (2) of this
Article 12 - Grounds for challenge article is not successful, the
1. When a person is approached in challenging party may request, within
connection with his possible thirty days after having received
appointment as an arbitrator, he shall notice of the decision rejecting the
disclose any circumstances likely to challenge, the court or other authority
give rise to justifiable doubts as to his specified in article 6 to decide on the
impartiality or independence. An challenge, which decision shall be
arbitrator, from the time of his subject to no appeal; while such a
appointment and throughout the request is pending, the arbitral
arbitral proceedings, shall without tribunal, including the challenged
delay disclose any such circumstances arbitrator, may continue the arbitral
to the parties unless they have already proceedings and make an award.
been informed of them by him.
2. An arbitrator may be challenged f. Failure or impossibility to act
only if circumstances exist that give Article 14 - Failure or impossibility
rise to justifiable doubts as to his to act
impartiality or independence, or if he 1. If an arbitrator becomes de jure or
does not possess qualifications agreed de facto unable to perform his
to by the parties. A party may functions or for other reasons fails to
challenge an arbitrator appointed by act without undue delay, his mandate
him, or in whose appointment he has terminates if he withdraws from his
participated, only for reasons of which office or if the parties agree on the
he becomes aware after the termination. Otherwise, if a
appointment has been made. controversy remains concerning any of
these grounds, any party may request
the court or other authority specified in


Legal Guidelines for Alternative Dispute Resolution Civil Procedure –
Dean Leonen

article 6 to decide on the termination authorized by the parties or all


of the mandate, which decision shall members of the arbitral tribunal.
be subject to no appeal.
2. If, under this article or article 13 (2), j. Settlement
an arbitrator withdraws from his office Article 30 - Settlement
or a party agrees to the termination of 1. If, during arbitral proceedings, the
the mandate of an arbitrator, this does parties settle the dispute, the arbitral
not imply acceptance of the validity of tribunal shall terminate the
any ground referred to in this article or proceedings and, if requested by the
article 12 (2). parties and not objected to by the
arbitral tribunal, record the settlement
i. Failure to perform in the form of an arbitral award on
functions agreed terms.
ii. Failure to act without 2. An award on agreed terms shall be
undue delay made in accordance with the
provisions of article 31 and shall state
g. Equal treatment of parties that it is an award. Such an award has
Article 18 - Equal treatment of the same status and effect as any
parties other award on the merits of the case.
The parties shall be treated with
equality and each party shall be given k. Form and contents or arbitral
a full opportunity of presenting his awards
case. Article 31 - Form and contents of
award
1. The award shall be made in writing
h. Determination of rules of and shall be signed by the arbitrator or
procedure arbitrators. In arbitrator proceedings
Article 19 - Determination of rules with more than one arbitrator, the
of procedure signatures of the majority of all
1. Subject to the provisions of this members of the arbitral tribunal shall
Law, the parties are free to agree on suffice, provided that the reason for
the procedure to be followed by the any omitted signature is stated.
arbitral tribunal in conducting the 2. The award shall state the reasons
proceedings. upon which it is based, unless the
2. Failing such agreement, the arbitral parties have agreed that no reasons
tribunal may, subject to the provisions are to be given or the award is an
of this Law, conduct the arbitration in award on agreed terms under article
such manner as it considers 30.
appropriate. The power conferred upon 3. The award shall state its date and
the arbitral tribunal includes the power the place of arbitration as determined
to determine the admissibility, in accordance with article 20 (1). The
relevance, materiality and weight of award shall be deemed to have been
any evidence. made at that place.
4. After the award is made, a copy
i. Decision making by panel of signed by the arbitrators in accordance
arbitrators with paragraph (1) of this article shall
Article 29 - Decision-making by be delivered to each party
panel of arbitrators
In arbitral proceedings with more than l. Termination of proceedings
one arbitrator, any decision of the Article 32 - Termination of
arbitral tribunal shall be made, unless proceedings
otherwise agreed by the parties, by a 1. The arbitral proceedings are
majority of all its members. However, terminated by the final award or by an
questions of procedure may be order of the arbitral tribunal in
decided by a presiding arbitrator, if so accordance with paragraph (2) of this
article.


Legal Guidelines for Alternative Dispute Resolution Civil Procedure –
Dean Leonen

2. The arbitral tribunal shall issue an The Commission shall continue to exercise
order for the termination of the arbitral original and exclusive jurisdiction over
proceedings when: construction disputes although the arbitration is
(a) the claimant withdraws his claim, "commercial" pursuant to Section 21 of this Act.
unless the respondent objects thereto III. Authority to act as mediator or
and the arbitral tribunal recognizes a arbitrator
legitimate interest on his part in SEC. 36. Authority to Act as Mediator or
obtaining a final settlement of the Arbitrator. - By written agreement of the parties
dispute; to a dispute, an arbitrator may act as mediator
(b) the parties agree on the and a mediator may act as arbitrator. The parties
termination of the proceedings; may also agree in writing that, following a
(c) the arbitral tribunal finds that the successful mediation, the mediator shall issue the
continuation of the proceedings has for settlement agreement in the form of an arbitral
any other reason become unnecessary award.
or impossible. a. By agreement of the parties
3. The mandate of the arbitral tribunal b. Mediated settlement can be an
terminates with the termination of the arbitral award
arbitral proceedings, subject to the
provisions of articles 33 and 34 (4). IV. Appointment of Foreign arbitrator
SEC. 37. Appointment of Foreign Arbitrator.
- The Construction Industry Arbitration
III. Applicability of Chapter 4 Commission (CIAC) shall promulgate rules to
allow for the appointment of a foreign arbitrator
or coarbitrator or chairman of a tribunal a person
who has not been previously accredited by CIAC:
Provided, That:
(a) the dispute is a construction dispute in which
one party is an international party
(b) the person to be appointed agreed to abide by
the arbitration rules and policies of CIAC;
(c) he/she is either coarbitrator 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
Arbitration of Construction Disputes (d) the foreign arbitrator shall be of different
nationality from the international party.
I. Applicability of EO 1008
SEC. 34. Arbitration of Construction
Disputes: Governing Law. - The arbitration of V. Applicability of provisions of ADR
construction disputes shall be governed by law
Executive Order No. 1008, otherwise known as SEC. 38. Applicability to Construction
the Constitution Industry Arbitration Law. Arbitration. - The provisions of Sections 17 (d)
of Chapter 2, and Section 28 and 29 of this Act
II. Coverage of Law shall apply to arbitration of construction disputes
SEC. 35. Coverage of the Law. - Construction covered by this Chapter.
disputes which fall within the original and a. Provisions in settlement agreement
exclusive jurisdiction of the Construction Industry b. Grant of interim measures of
Arbitration Commission (the "Commission") shall protection
include those between or among parties to, or c. Additional grant of interim
who are otherwise bound by, an arbitration measures of protection
agreement, directly or by reference whether such
parties are project owner, contractor,
subcontractor, quantity surveyor, bondsman or
issuer of an insurance policy in a construction
project.


Legal Guidelines for Alternative Dispute Resolution Civil Procedure –
Dean Leonen

A CIAC arbitral award need not be confirmed by


the regional trial court to be executory as
provided under E.O. No. 1008.

a. Generally
RA 876 Section 23. Confirmation of
award. - At any time within one month
after the award is made, any party to
the controversy which was arbitrated
may apply to the court having
jurisdiction, as provided in section
twenty-eight, for an order confirming
the award; and thereupon the court
must grant such order unless the
award is vacated, modified or
corrected, as prescribed herein. Notice
of such motion must be served upon
the adverse party or his attorney as
prescribed by law for the service of
such notice upon an attorney in action
in the same court.
i. One month from award
ii. Court with jurisdiction
iii. Documents to accompany
motion
Section 28. Papers to
accompany motion to
confirm, modify, correct, or
vacate award. - The party
moving for an order
confirming, modifying,
correcting, or vacating an
award, shall at the time that
such motion is filed with the
court for the entry of
judgment thereon also file
the following papers with
the Clerk of Court;
(a) The submission, or
contract to arbitrate; the
appointment of the
JUDICIAL REVIEW OF ARBITRAL AWARDS arbitrator or arbitrators; and
each written extension of
Domestic Arbitral Awards the time, if any, within
I. Confirmation of Awards which to make the award.
SEC. 40. Confirmation of Award. - The (b) A verified of the award.
confirmation of a domestic arbitral award shall be (c) Each notice, affidavit, or
governed by Section 23 of R.A. 876. other paper used upon the
A domestic arbitral award when confirmed shall application to confirm,
be enforced in the same manner as final and modify, correct or vacate
executory decisions of the Regional Trial Court. such award, and a copy of
The confirmation of a domestic award shall be each of the court upon such
made by the regional trial court in accordance application.
with the Rules of Procedure to be promulgated by The judgment shall be
the Supreme Court. docketed as if it were
rendered in an action.

Legal Guidelines for Alternative Dispute Resolution Civil Procedure –
Dean Leonen

The judgment so entered domestic arbitral award shall be disregarded by


shall have the same force the regional trial court.
and effect in all respects, RA 876 Section 25. Grounds for modifying or
as, and be subject to all the correcting award. - In any one of the following
provisions relating to, a cases, the court must make an order modifying or
judgment in an action; and correcting the award, upon the application of any
it may be enforced as if it party to the controversy which was arbitrated:
had been rendered in the (a) Where there was an evident miscalculation of
court in which it is entered. figures, or an evident mistake in the description
of any person, thing or property referred to in the
b. Jurisdiction award; or
i. Generally , RTC (b) Where the arbitrators have awarded upon a
SEC. 40. Confirmation of matter not submitted to them, not affecting the
Award. - The confirmation of merits of the decision upon the matter submitted;
a domestic arbitral award or
shall be governed by Section (c) Where the award is imperfect in a matter of
23 of R.A. 876. form not affecting the merits of the controversy,
A domestic arbitral and if it had been a commissioner's report, the
award when confirmed shall defect could have been amended or disregarded
be enforced in the same by the court.
manner as final and The order may modify and correct the award so
executory decisions of the as to effect the intent thereof and promote justice
Regional Trial Court. between the parties.
The confirmation of a
domestic award shall be III. Vacating awards
made by the regional trial Section 24. Grounds for vacating award. - In any
court in accordance with the one of the following cases, the court must make
Rules of Procedure to be an order vacating the award upon the petition of
promulgated by the Supreme any party to the controversy when such party
Court. proves affirmatively that in the arbitration
A CIAC arbitral award proceedings:
need not be confirmed by the (a) The award was procured by corruption, fraud,
regional trial court to be or other undue means; or
executory as provided under (b) That there was evident partiality or corruption
E.O. No. 1008. in the arbitrators or any of them; or
(c) That the arbitrators were guilty of misconduct
ii. CIAC,RTC in refusing to postpone the hearing upon
sufficient cause shown, or in refusing to hear
c. Treated as final and executory evidence pertinent and material to the
decision controversy; that one or more of the arbitrators
Sec 40 (par2) A domestic was disqualified to act as such under section nine
arbitral award when hereof, and wilfully refrained from disclosing such
confirmed shall be enforced disqualifications or of any other misbehavior by
in the same manner as final which the rights of any party have been
and executory decisions of materially prejudiced; or
the Regional Trial Court. (d) That the arbitrators exceeded their powers, or
so imperfectly executed them, that a mutual,
II. Vacating awards final and definite award upon the subject matter
SEC. 41. Vacation Award. - A party to a submitted to them was not made.
domestic arbitration may question the arbitral Where an award is vacated, the court, in its
award with the appropriate regional trial court in discretion, may direct a new hearing either
accordance with the rules of procedure to be before the same arbitrators or before a new
promulgated by the Supreme Court only on those arbitrator or arbitrators to be chosen in the
grounds enumerated in Section 25 of Republic manner provided in the submission or contract
Act No. 876. Any other ground raised against a for the selection of the original arbitrator or
arbitrators, and any provision limiting the time in


Legal Guidelines for Alternative Dispute Resolution Civil Procedure –
Dean Leonen

which the arbitrators may make a decision shall regional trial court in accordance with
be deemed applicable to the new arbitration and the rules of procedure to be
to commence from the date of the court's order. promulgated by the Supreme Court.
Where the court vacates an award, costs, not Said procedural rules shall provide that
exceeding fifty pesos and disbursements may be the party relying on the award or
awarded to the prevailing party and the payment applying for its enforcement shall file
thereof may be enforced in like manner as the with the court the original or
payment of costs upon the motion in an action. authenticated copy of the award and
the arbitration agreement. If the award
a. Awards procured by corruption, or agreement is not made in any of the
froud, or other undue means official languages, the party shall
b. Evident partiality supply a duly certified translation
c. Or corruption of arbitrator thereof into any of such languages.
d. Arbitrator misconduct in refusing to The applicant shall establish that the
postpone or hear evidence country in which foreign arbitration
e. Disqualification of arbitrator was award was made is a party to the New
not made known York Convention.
f. Arbitrators exceeded powers, If the application for rejection or
imperfect execution no final award suspension of enforcement of an
award has been made, the regional
IV. Modifying or correcting award trial court may, if it considers it proper,
RA 876 Section 25. Grounds for modifying or vacate its decision and may also, on
correcting award. - In any one of the following the application of the party claiming
cases, the court must make an order modifying or recognition or enforcement of the
correcting the award, upon the application of any award, order the party to provide
party to the controversy which was arbitrated: appropriate security.
(a) Where there was an evident miscalculation of Article 35 - Recognition and
figures, or an evident mistake in the description enforcement
of any person, thing or property referred to in the 1. An arbitral award, irrespective of
award; or the country in which it was made, shall
(b) Where the arbitrators have awarded upon a be recognized as binding and, upon
matter not submitted to them, not affecting the application in writing to the competent
merits of the decision upon the matter submitted; court, shall be enforced subject to the
or provisions of this article and of article
(c) Where the award is imperfect in a matter of 36.
form not affecting the merits of the controversy, 2. The party relying on an award or
and if it had been a commissioner's report, the applying for its enforcement shall
defect could have been amended or disregarded supply the duly authenticated original
by the court. award or a duly certified copy thereof,
The order may modify and correct the award so and the original arbitration agreement
as to effect the intent thereof and promote justice referred to in article 7 or a duly
between the parties. certified copy thereof. If the award or
agreement is not made in an official
International Commercial Awards language of this State, the party shall
supply a duly certified translation
Recognition and Enforcement thereof into such language.
a. Applicability of new york
convention
SEC. 42. Application of the New b. Grounds for refusing
York Convention. - The New York Article 36 - Grounds for refusing
Convention shall govern the recognition or enforcement
recognition and enforcement of arbitral 1. Recognition or enforcement of an
awards covered by the said arbitral award, irrespective of the
Convention. country in which it was made, may be
The recognition and enforcement of refused only:
such arbitral awards shall be filled with

Legal Guidelines for Alternative Dispute Resolution Civil Procedure –
Dean Leonen

(a) at the request of the party against court where recognition or


whom it is invoked, if that party enforcement is sought may, if it
furnishes to the competent court considers it proper, adjourn its decision
where recognition or enforcement is and may also, on the application of the
sought proof that: party claiming recognition or
(i) a party to the arbitration enforcement of the award, order the
agreement referred to in article 7 was other party to provide appropriate
under some incapacity; or the said security.
agreement is not valid under the law
to which the parties have subjected it Jurisdiction for Recognition and
or, failing any indication thereon, Enforcement, RTC
under the law of the country where the
award was made; or Recognition and Enforcement of Awards not
(ii) the party against whom the award covered by New York Convention
is invoked was not given proper notice SEC. 43. Recognition and Enforcement of
of the appointment of an arbitrator or Foreign Arbitral Awards Not Covered by the
of the arbitrator proceedings or was New York Convention. - The recognition and
otherwise unable to present his case; enforcement of foreign arbitral awards not
or covered by the New York Convention shall be
(iii) the award deals with a dispute not done in accordance with procedural rules to be
contemplated by or not falling within promulgated by the Supreme Court. The Court
the terms of the submission to may, grounds of comity and reciprocity,
arbitration, or it contains decisions on recognize and enforce a nonconvention award as
matters beyond the scope of the a convention award.
submission to arbitration, provided
that, if the decisions on matters When recognized,not foreign judgment but
submitted to arbitration can be foreign arbitral award
separated from those not so SEC. 44. Foreign Arbitral Award Not Foreign
submitted, that part of the award Judgment. - A foreign arbitral award when
which contains decisions on matters confirmed by a court of a foreign country, shall be
submitted to arbitration may be recognized and enforced as a foreign arbitral
recognized and enforced; or award and not a judgment of a foreign court.
(iv) the composition of the arbitral A foreign arbitral award, when confirmed by the
tribunal or the arbitral procedure was regional trial court, shall be enforced as a foreign
not in accordance with the agreement arbitral award and not as a judgment of a foreign
of the parties or, failing such court.
agreement, was not in accordance A foreign arbitral award, when confirmed by the
with the law of the country where the regional trial court, shall be enforced in the same
arbitration took place; or manner as final and executory decisions of courts
(v) the award has not yet become of law of the Philippines.
binding on the parties or has been set
aside or suspended by a court of the Rejection
country in which, or under the law of SEC. 45. Rejection of a Foreign Arbitral
which, that award was made; or Award. - A party to a foreign arbitration
(b) if the court finds that: proceeding may oppose an application for
(i) the subject-matter of the dispute is recognition and enforcement of the arbitral award
not capable of settlement by in accordance with the procedural rules to be
arbitration under the law of this State; promulgated by the Supreme Court only on those
or grounds enumerated under Article V of the New
(ii) the recognition or enforcement of York Convention. Any other ground raised shall
the award would be contrary to the be disregarded by the regional trial court.
public policy of this State.
2. If an application for setting aside or Appeal to CA
suspension of an award has been SEC. 46. Appeal from Court Decisions on
made to a court referred to in Arbitral Awards. - A decision of the regional
paragraph (1) (a) (v) of this article, the trial court confirming, vacating, setting aside,

Legal Guidelines for Alternative Dispute Resolution Civil Procedure –
Dean Leonen

modifying or correcting an arbitral award may be business; or (iv) in the National Judicial Capital
appealed to the Court of Appeals in accordance Region, at the option of the applicant.
with the rules of procedure to be promulgated by
the Supreme Court. a. Where arbitration was
The losing party who appeals from the judgment conducted
of the court confirming an arbitral award shall b. Where assets to be attached
required by the appealant court to post c. Where parties reside or place
counterbond executed in favor of the prevailing of business
party equal to the amount of the award in d. In national capital judicial
accordance with the rules to be promulgated by region
the Supreme Court.

II. Treatment as special proceeding


SEC. 47. Venue and Jurisdiction. - Proceedings Creation of the
for recognition and enforcement of an arbitration Office of the Alternative Dispute Resolution
agreement or for vacation, setting aside, DOJ
correction or modification of an arbitral award,
and any application with a court for arbitration
assistance and supervision shall be deemed as
special proceedings and shall be filled with the
regional trial court (i) where arbitration
proceedings are conducted; (ii) where the asset
to be attached or levied upon, or the act to be
enjoined is located; (iii) where any of the parties
to the dispute resides or has his place of
business; or (iv) in the National Judicial Capital
Region, at the option of the applicant.

a. Notice of proceeding
SEC. 48. Notice of Proceeding to Indicative Checklist for Contract Provision
Parties. - In a special proceeding for
recognition and enforcement of an  Forms of ADR, including third party
arbitral award, the Court shall send evaluation , mediation, arbitration
notice to the parties at their address of  Reference to Arbitration
record in the arbitration, or if any party  Mediation
cannot be served notice at such  Special Qualification of Mediator
address, at such party's last known SEC. 13. Mediator's Disclosure and
address. The notice shall be sent at Conflict of Interest. - The mediation shall
least fifteen (15) days before the date be guided by the following operative
set for the initial hearing of the principles:
application. xxxThis Act does not require that a
mediator shall have special qualifications
III. Venue and jurisdiction,choice of applicant by background or profession unless the
SEC. 47. Venue and Jurisdiction. - Proceedings special qualifications of a mediator are
for recognition and enforcement of an arbitration required in the mediation agreement or by
agreement or for vacation, setting aside, the mediation parties.
correction or modification of an arbitral award,  Waivers of Legal Representation
and any application with a court for arbitration SEC. 14. Participation in Mediation. -
assistance and supervision shall be deemed as Except as otherwise provided in this Act, a
special proceedings and shall be filled with the party may designate a lawyer or any other
regional trial court (i) where arbitration person to provide assistance in the
proceedings are conducted; (ii) where the asset mediation. A lawyer of this right shall be
to be attached or levied upon, or the act to be made in writing by the party waiving it. A
enjoined is located; (iii) where any of the parties waiver of participation or legal
to the dispute resides or has his place of


Legal Guidelines for Alternative Dispute Resolution Civil Procedure –
Dean Leonen

representation may be rescinded at any provisions of Executive Order No. 1008 for
time. mediated dispute outside of the CIAC.
 Place of Mediation  Appointing authority in arbitration
SEC. 15. Place of Mediation. - 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.
 Institutional Mediation
SEC. 16. Effect of Agreement to Submit
Dispute to Mediation Under Institutional
Rules. - An agreement to submit a dispute
to mediation by any institution shall
include an agreement to be bound by the
internal mediation and administrative
policies of such institution. Further, an
agreement to submit a dispute to
mediation under international mediation
rule shall be deemed to include an
agreement to have such rules govern the
mediation of the dispute and for the
mediator, the parties, their respective
counsel, and nonparty participants to
abide by such rules.
In case of conflict between the
institutional mediation rules and the
provisions of this Act, the latter shall
prevail.
 Enforcement, preparation of
agreement
SEC. 17. Enforcement of Mediated
Settlement Agreement. - The mediation
shall be guided by the following operative
principles:
(a) 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.
The 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.

 Mediator as sole arbitrator in case of


enforcement of agreement
Sec 17(d) 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
Republic Act No. 876, otherwise known as
the Arbitration Law, notwithstanding the