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Alternative Dispute Resolution

(reviewer)
What is ADR?
means any process or procedure
used to resolve a dispute or controversy,
other than by adjudication of a presiding
judge of a court or an officer of a
government agency, as defined in this
Act, in which a neutral third party
participates to assist in the resolution of
issues, which includes arbitration,
mediation, conciliation, early neutral
evaluation, mini-trial, or any combination
thereof;(ra9285 sec.3)
What is Arbitration?
a voluntary dispute resolution
process in which one or more arbitrators,
appointed in accordance with the
agreement of the parties, or rules
promulgated pursuant to this Act, resolve
a dispute by rendering an award(ra9285
sec.3(d))
PARTY AUTONOMY
Definition
Freedom of the parties to make
their own arrangement to resolve their
disputes

2. The procedure the judge will follow


in the resolution of the dispute
Arbitration agreement is the law between
the contracting parties
Arbitration Agreement vs. Submission
Agreement
SUBMISSION AGREEMENT when
two or more persons or parties may
submit to the arbitration of one or more
arbitrators any controversy existing
between them at the time of the
submission while ARBITRATION
AGREEMENT parties to any contract may
in such contract agree to settle by
arbitration a controversy thereafter
arising between them.
In a nutshell the difference between the
two is the time when the controversy
arises or when it is expected to arise.
Submission Agreement
If the dispute existed at the time
that the parties have no agreement to
arbitrate the controversy or dispute, and
it is only when the controversy is already
existing that the parties agreed to submit
the dispute to arbitration
Arbitration Agreement

Note:
State encourages and promotes the use
of ADR in order to:
1. Achieve speedy and impartial
justice
2. De-clog court dockets
The exercise of party autonomy is
manifested in several ways, e.g.
1. Parties are able to select their
arbitrators
2. Participate in the process for
selection of their arbitrators
3. Number of arbitrators
4. Qualification of arbitrators; or
5. The period of their selection
Unlike in litigation the parties cannot:
1. Choose the judge who will resolve
their dispute; or

If the parties enter into agreement


to settle by arbitration a controversy
which might arise in the future
Note:
Arbitration agreement may be in
the form of an
1. Arbitration clause; or
2. Separate agreement
Those which by law cannot be
compromise refers to art. 2035 CC
1. Civil status of a person
2. Validity of marriage or legal
separation
3. Any ground for legal separation
4. Future support
5. Jurisdiction of courts
6. Future legitime
Principle of separability clause
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Arbitration clause shall be treated


as agreement independent of the other
terms of the contract of which it forms
part
Note:
If the main contract is invalid, the
arbitration clause/agreement still
remains valid and enforceable
Rescission of Arbitration Agreement
Where a contract contains an
arbitration clause, a party may not
unilaterally terminate the contract, on
account of infraction committed by the
other part, without first resorting to
arbitration

THE ARBITRATION
AGREEMENT

Arbitration agreement may be in the


form of:
1. Arbitration clause in a contract; or
2. Separate Agreement (model art. 7
(1) )
Formal requisite of arbitration
agreement: (RA876, sec.4)
1. Shall be in writing
2. Subscribe by the party sought to
be charge or by his lawful agent
Arbitration Agreement shall be in
writing if:
1. Contained in a documents signed
by the parties;or
2. In an exchange of letters, telex,
telegrams or other means of
telecommunication which provide a
record of agreement; or
3. In an exchange of statement of
claim and defence in which the
existence of an agreement is
alleged by one party and not
denied by another. (model art. 7 (2)
)

PRESUMPTIVE VALIDITY
AND ENFORCEABILITY OF

Referral to Arbitration
GR: (RA 9285, sec 24)
The court which an action is
brought in a matter which is subject to
arbitration agreement shall refer firts to
arbitration if:
1. AT LEAST 1 party so requested (not
latter than the pre-trial); or
2. Upon the request of BOTH parties
EXCEPTION:
Unless it finds the arbitration
agreement null and void
Note:
Thus the action for arbitral
proceedings will commenced and award
may be made while the issue is pending
before the court (IRR, art. 5.7 b)
MULTIPLE PARTIES
If there are multiple parties in an action
before the court, the court will refer to
arbitration those who are bound by the
arbitration agreement and the civil action
may continue to those who are not
bound by such arbitration agreement.
(IRR, 5.7 c)
The court should not decline to refer
SOME or ALL of the parties to
arbitration for any of the following
reasons:
1. Not all of the disputes subject of
the civil action may be referred to
arbitration;
2. Not all of the parties to the civil
action are bound by the arbitration
agreement and referral to
arbitration would result in
multiplicity of suits;
3. The issues raised in the civil action
could be speedily and efficiently
resolved in its entirety by the court
rather than in arbitration;
4. Referral to arbitration does not
appear to be the most prudent
action; or
5. The stay of the action would
prejudice the rights of the parties
to the civil action who are not
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bound by the arbitration


agreement. (Special 4.7)
NOTE:

reconsideration,
appeal or petition
for certiorati

The court may issue an order


directing the inclusion in arbitration of
those parties who are not bound by the
arbitration agreement.
PROVIDED:
1. Those who are not bound AGREED
to such inclusion; and
2. Those who are originally bound by
it do not object to their inclusion

A PARTY to a pending action,


whether contain in an arbitration clause
or submission agreement, may request
the court to refer the parties to
arbitration agreement. (SPECIAL, rule
4.1)
When to make request? (SPECIAL,
rule 4.1)

NOT latter than


pre-trial

WHAT PARTIES CAN


AGREE TO

APPOINTMENT OF ARBITRATORS

Submission
Agreement

GR:
Parties are free to agreed the
number of arbitrators
EXCEPTION:
Failure such determination, number
of such arbitrators shall be 3
Appointment of Arbitrators (Model
art. 11)
1. Any person can act as an
arbitrators even if he is an alien
UNLESS otherwise agreed by the
parties
2. The parties can agreed to the
PROCEDURE of APPOINTING the
arbitrator/s subject to:

ANY TIME during the


proceedings
NO procedure
agreed upon

CONSEQUENCES, whether the


request for the referral to
arbitration is granted or not
(SPECIAL, rule 4.6)
GRANTED

1. Motion for
reconsiderati
on; and/or
2. Petition for
certiorari

Number of Arbitrators (Model art. 10)

Who make the request?

Where
arbitration
agreement
exist before
the action is
filed

subject to:

DENIED

Immediately
executor

NOT subject to an
appeal

NOT subject to
motion for

BUT may be

In arbitration
with 3
arbitrators:
1. Each party
shall appoint
1 arbitrators
2. And the
elected 2
arbitrators by
the parties
shall elect 1
arbitrators
(being the 3rd

Under the
procedure agreed
upon by the parties
Parties failed to:
1. Act as
required
under such
procedure; or
2. 2 arbitrators,
unable to
reach an
agreement
3. 3rd party,
including the
institution,
fails to
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arbitrator)

The court or other


authority shall
appoint arbitrators
UPON request by a
party if:
1. Parties fails
to appoint
the arbitrator
(within 30
days from the
receipt of a
request from
the other
party)
2. If the 2
arbitrators
fails to agree
on the 3rd
arbitrators
(within 30
days from
their
appointment)

perform any
function

The court or other


authority shall,
UPON request by
any party to take
necessary measure.

In Arbitration
with a SOLE
arbitrator
The court shall
appoint the
arbitrator UPON
request of a party,
if the parties are
unable to agree
upon
NOTE: (IRR, 5.10)
Upon appointment by the
appointing authority, the latter shall
summon the parties and their respective
counsel to appear before said authority
on the date, time and place set by it, for
the purpose of selecting and appointing
the sole arbitrator.
If the sole arbitrator is not
appointed in such meeting or the
meeting does not take place due to the
absence of either or both parties despite

due notice, the appointing authority shall


appoint the sole arbitrator.
If the default appointment is
objected to by a party on whose behalf
the default appointment is to be made,
and the defaulting party requests the
appointing authority for additional time
to appoint his/her arbitrator, the
appointing authority may give the
requesting party not more than thirty
(30) days to make the appointment.
The appointing authority shall give
notice in writing to the parties of the
appointment made or its inability to
comply with the Request for Appointment
and the reasons why it is unable to do so.
The chairman of the arbitral
tribunal shall be selected in accordance
with the agreement of the parties and/or
the rules agreed upon or, in default
thereof, by the arbitrators appointed.
Any clause giving one of the
parties the power to choose more
arbitrators than the other is void.
PROCEDURE/RULES OF ARBITRATORS
GR: (Model, art. 19)
Parties are FREE to agree on the
procedure to be followed by the arbitral
tribunal in conducting the proceedings.
EXCEPTION:
The ARBITRAL TRIBUNAL may
conduct the arbitration in such a manner
as it considers appropriate.
Statement of claim and defence
(Model, sec. 23)
1. Within the period agreed by the
parties or determined by the
tribunal,
a. the claimant shall state:
i. Facts supporting his
claims
ii. The points at issue
iii. The relief or remedy
sought
b. and the respondent shall
state his defence in respect
of these particulars, unless
the parties have otherwise
agreed as to the required
elements of such statements.
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2. Unless otherwise agreed by the


parties, either party may amend or
supplement his claim or defence
during the course of the arbitral
proceedings, unless the arbitral
tribunal considers it inappropriate
to allow such amendments having
regard to the delay in making it

of claim in
accordance
with art. 23
(1) of
Model law

of defence
in
accordance
with art. 23
(1) of
Model law

hearing;
or
2. To
produce
docume
ntary
evidenc
e

Arbitral
Tribunal
shall
terminate
the
proceeding
s

Arbitral
Tribunal
shall
continue
the
proceeding
WITHOUT
treating
such failure
in itself an
admission
of the
claimants

Arbitral
Tribunal may
continue the
proceedings
and make the
award on the
evidence
before it.

Hearing and written Proceedings


1. The Arbitral Tribunal Shall decide
whether to hold
a. oral hearings for the
presentation of evidence; or
b. for oral argument; or
c. whether the proceedings
shall be conducted on the
basis of document and other
materials
NOTE:
Subject to any contrary
agreements by the parties
2. The parties shall be given sufficient
advance notice of any hearing and
of any meeting of the arbitral
tribunal for the purpose of
inspection of goods, other property
or documents
3. All statements, documents or other
information supplied to arbitral
tribunals by one party shall be
communicated to the other party.
Also any expert report of
evidentiary documents on which
the arbitral tribunal may rely in
making its decision shall be
communicated

SEAT OF ARBITRATION
GR: (RA 9285, sec. 30)
The parties are free to agree the
seat of Arbitration
Exception:
Failing such agreement, the place
of arbitration shall be in Metro Manila,
UNLESS the arbitral tribunal , having
regard the circumstances of the case and
the convenience of the parties shall
decide on the place.

Default of a Party (Model, sec. 25)

NOTE:

NOTE:

The arbitral Tribunal may meet at


any place it considered appropriate for
consultation among members, for
hearing witnesses, experts or the parties,
or for inspection of foods, other property
or documents.

Unless otherwise agreed by the


parties, if, without showing sufficient
cause
DEFAULT OF A PARTY
Claimants
fails to
communica
te his
statement

Responde Any Party


nt fails to
fails to:
communica
te his
1. Appear
statement
at

UNLESS otherwise agreed by the


parties.
LAW GOVERNING THE DISPUTE
GR: (Model art. 28)

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The parties shall choose the law


applicable to the substance of the
dispute

Expert Appointed by Arbitral


Tribunal (Model Art. 26)
The Arbitral Tribunal may:

EXCEPTION:
Failing any designation, the arbitral
tribunal shall apply law determine by the
conflict of law rules which it considered
applicable
NOTE:
The arbitral tribunal shall decide ex
aeqou et bono or as amiable
composituer ONLY if EXPRESSLY
AUTHORIZED by the parties

1. Appoint 1 or more expert to report


to on specific issue to be
determinable by the arbitral
tribunal
2. Require a party to give the expert
any relevant information or to
produce or to provide access to any
relevant document, goods or other
property for his inspection

NOTE:
In all cases the arbitral tribunal
shall decide in accordance with the term
of the contract and shall take into
account the usage of the trade applicable
for transactions.
LANGUAGE OF THE ARBITRATION
GR: (RA 9285, sec. 21)
The parties are free to agree on the
language or languages to be used in the
arbitral proceedings.

If the parties so request or if the


Arbitral Tribunal consider it necessary,
can participate in a hearing where the
parties have the opportunity to put
question to him and to present expert
witnesses in order to testify the points at
issue, after the expert deliver his written
or oral report
NOTE:
Unless otherwise agreed by the
parties

EXCEPTION:
Failing such agreement, the
language to be used shall be:
1. English- in international arbitration
2. English or Filipino- in domestic
arbitration

LIMITATION ON PARTY
AUTONOMY

MANDATORY RULES FROM WHICH


THERE CAN BE NO DEROGATION

NOTE:
Unless the arbitral tribunal shall
determine a different or another
language/s to be used in the
proceedings.
This agreement shall apply to any
written statements by a party, any
hearing and any award, decision or other
communication by the arbitral tribunal.
The tribunal may order that any
documentary evidence shall be
accompanied by a translation into
language/s agreed by the parties.
APPOINTENT OF EXPERTS

Equal Treatment of parties (Model,


art. 18)
The parties shall be treated with
equality and each party shall be given
full opportunity of presenting his case
NON ARBITRABLE MATTERS
8 certain subject matter that Philippine
law does not allow to be the subject of
arbitration (RA 9285 sec.6)
1.
2.
3.
4.

Labor dispute
Civil status of a person
Validity of marriage
Any ground for legal separation
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5.
6.
7.
8.

Jurisdiction of the courts


Future legitime
Criminal liability
Those which by law cannot be
compromise

d. The arbitration proceeding has


not commenced;
e. The place of arbitration is in a
foreign country;

Those which by law cannot be


compromise refers to art. 2035 CC

f. One or more of the issues are


legal and one or more of the
arbitrators are not lawyers;

NON-PARTIES TO ARBITRATION
AGREEMENT

g. One or more of the arbitrators


are not Philippine nationals; or

Inclusion of additional party (IRR, art.


5.44b )
If no objection by the respondent,
he is deemed consented to the inclusion
of additional person as either additional
claimant or additional respondent (who is
not party/bound to the arbitration
agreement) by the claimant
NOTE:
The objection must be done not
later than the date of communicating his
answer to the request for arbitration
either by motion or special defense in his
answer
xxxx
On the other hand the additional
respondent is deemed consented to the
inclusion if he fails to object such.
NOTE:
The objection must be done not
later than the date of communicating his
answer to the request for arbitration
either by motion or special defense in his
answer

h. One or more of the arbitrators


are alleged not to possess the
required qualification under the
arbitration agreement or law.
NOTE:
That in the absence of specific
provision, all other rules applicable to
international commercial arbitration may
be applied in a supplementary manner to
domestic arbitration.
GR:
Infant or person judicially declared
as incompetent cannot be subject to
arbitration
EXCEPTION:
The appropriate court having
jurisdiction approved a petition for
permission to submit such controversy to
arbitration made by the general guardian
or guardian ad litem of the infant or of
the incompetent (IRR, 5.1)
TYPES OF
ARBITRATION

Special ADR Rules Rule 2.2


The court shall not refuse to refer parties
to arbitration for reasons including, but
not limited to:
a. The referral tends to oust a court
of its jurisdiction;

1. Domestic Arbitration
2. International Arbitration
Distinction between the two
International arbitration if:

b. The court is in a better position


to resolve the dispute subject of
arbitration;
c. The referral would result in
multiplicity of suits;

1. The parties to an arbitration


agreement have, at the time of the
conclusion of that agreement, their
places of business in different
states
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2. One of the following places is


stipulated outside the state in
which the parties have their palces
of business:
a. The place of arbitration if
determine in, or pursuant to,
the arbitration agreement
b. Any place where a
substantial part of the
obligation of the commercial
relationship is to be
performed of the place with
which the subject matter of
the dispute is most closely
connected; or
c. The parties have expressly
agreed that the subjectmatter of the arbitration
agreement relates to more
than one country
Domestic arbitration
If it is not international as define
above then it is domestic
Note:
The term place of business place
a key part in the definition of
international arbitration above.
International arbitration in the
Philippines shall be governed by the
Model Law of International Commercial
Arbitration adopted by UN
INSTITUTIONAL vs. AD HOC
Institutional arbitration (IRR, 1.6 D
11)
Means arbitration administered by
an entity, which is registered as a
domestic corporation with the Securities
and Exchange Commission (SEC)' and
engaged in, among others, arbitration of
disputes in the Philippines on a regular
and permanent basis.
Ad hoc Arbitration
Means an arbitration administered
by an arbitrator and/or the parties
themselves. An arbitration administered
by an institution shall be regarded as an
ad hoc arbitration if such institution is not
a permanent or regular arbitration
institution in the Philippines.
INTERNATIONAL COMMERCIAL
ARBITRATION

Model Law shall govern the


international commercial arbitration (RA
9285 sec. 19)
International arbitration means that
an arbitration where: (IRR, 1.6 C)
1. The parties to an arbitration
agreement have, at the time of the
conclusion of that agreement, their
places of business in different state
2. one of the following places is
situated outside the Philippines in
which the parties have their places
of business:
(i) the place of arbitration if
determined in, or pursuant to, the
arbitration agreement;
(ii) any place where a
substantial part of the obligations
of the commercial relationship is to
be performed or the place with
which the subject matter of the
dispute is most closely connected;
or
3. The parties have expressly agreed
that the subject matter of the
arbitration agreement relates to
more than one country.
COMMERCIAL ARBITRATION
An arbitration is "commercial" if it
covers matters arising from all
relationships of a commercial nature,
whether contractual or not.
Relationships of a transactions: any
trade transaction for the supply or
exchange of goods or services;
distribution agreements; construction of
works; commercial representation or
agency; factoring; leasing, consulting;
engineering; licensing; investment;
financing; banking; insurance; joint
venture and other forms of industrial or
business cooperation; carriage of goods
or passengers by air, sea, rail or road.
(RA 9285, sec. 21)
DOMESTIC ARBITRATION
RA. 876 The Arbitration Law shall
govern domestic the domestic arbitration
in the Philippines.
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These articles from model law shall apply


to domestic arbitration: (RA. 9285 sec. 32
and 33)
1. Art. 8
a. Arbitration Agreement and
substantive claim before the
court
2. Art. 10
a. Number of Arbitrators
3. Art. 11
a. Appointment of Arbitrators
4. Art. 12
a. Grounds for challenge
5. Art. 13
a. Challenge Procedure
6. Art. 14
a. Failure or impossibility to act
7. Art. 18
a. Equal Treatment to parties
8. Art. 19
a. Determination of Rules of
Procedure
9. Art. 29
a. Decision-making by panel of
Arbitrators
10.
Art. 32
a. Termination of Proceedings
DOCTRINE OF
SEPARABILITY OF
ARBITRATION AGREEMENT

The Special ADR Rules recognize the


principle of separability of the arbitration
clause
which means that said clause shall
be treated as an agreement independent
of the other terms of the contract of
which it forms part. A decision that the
contract is null and void shall not entail
ipso jure the invalidity of the arbitration
clause.
DOCTRINE OF
COMPETENCECOMPETENCE

The Special ADR Rules recognize the


principle of competence-competence
which means that the arbitral
tribunal may initially rule on its own
jurisdiction, including any objections with

respect to the existence or validity of the


arbitration agreement or any condition
precedent to the filing of a request for
arbitration.
Plea against the tribunal must be
raise: (ambot kung sakto)
1. A plea that arbitral tribunal does
not have jurisdiction shall be
raised NOT LATER than the
submission of the statements of
defence.
NOTE:
A party is not precluded from
arising such a plea by the fact that he
has appointed or participated in the
appointment of an arbitrator
2. A that the arbitral tribunal is
exceeding the scope of its
authority shall be raised as soon as
the matter alleged to be beyond
the scope of its authority is raised
during the arbitral tribunal
proceedings.
NOTE:
That if the tribunal rule on a plea
referred above that it has jurisdiction,
ANY party may request to the court,
WITHIN 30days from the receipt of the
decision, rule on the matter. (Model, art.
16)
The decision of the court shall be
immediately executory and NOT SUBJECT
TO APPEAL (SPECIAL, rule 4 c)
JUDICIAL RESTRAINT (ambot lang pud
kung sakto)
When the court, is asked to rule on
upon the issue/s affecting the
competence or jurisdiction of an arbitral
tribunal in a dispute before it, either
before or after the arbitral tribunal is
constituted, the court must exercise
judicial restraint and defer to the
competence or jurisdiction of the arbitral
tribunal by allowing the arbitral tribunal
the first opportunity to rule upon such
issues.
Again, under the policy of judicial
restraint, where the court is asked to
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make a determination of whether the


arbitration agreement is null and void, in
operative or incapable of being
performed, THE COURT MAKE NO MORE
THAN A PRIMA FACIE DETERMINATION OF
THAT ISSUE. (Special. 2.4)

a. If an arbitrator becomes de
jure or de facto unable to
perform his/her function
PRIVACY AND CONFIDENTIALITY

PLACE/SEAT OF ARBITRATION

GR: (RA 9285, sec. 23)


GR:
The parties are free to agree the
place of arbitration.

The arbitration proceedings,


including the records, evidence and the
arbitral award, shall be considered
confidential and shall not be published.
EXCEPTION:

EXCEPTION:
If no agreement, the tribunal will
determine such place having with
regards to the circumstance of the case
and the convenience of the parties
(Model, art. 20)
If no agreement, the place shall be
in metro manila, UNLESS the tribunal
decide on the different place, having
regard to the circumstances of the case
and the convenience of the parties (IRR,
4.20 a)
SHCEME OF LEAST COURT
INTERVENTION/MINIMUM
COURT INTERVENTION

1. With the consent of the parties; or


2. In cases where resort to the court,
limited purpose of disclosing to the
court relevant documents.
NOTE:
Provided that the court shall issue
protective order to prevent or prohibit
disclosure of documents or information
containing secret processes,
developments, research and other
information where it is shown that the
applicant shall be materially prejudiced
by an authorized disclosure thereof.

GR:

Confidential Information (IRR, 1.6 7)

The court shall not intervene in the


arbitration proceedings. (Model, IRR,
Special)

means any information, relative to


the subject of mediation or arbitration,
expressly intended by the source not to
be disclosed, or obtained under
circumstances that would create a
reasonable expectation on behalf of the
source that the information shall not be
disclosed.
It shall include:
1. communication, oral or written,
made in a dispute resolution
proceeding, including any
memoranda, notes or work product
of the neutral party or non-party
participant;
2. an oral or written statement made
or which occurs during mediation
or for purposes of considering,

EXCEPTION: (IRR, 5.5)


1. Art. 5.10 par. c and d (appointment
of arbitrators)
2. Art. 5.11 par. a (grounds for
challenge)
a. Arbitrator disclose any
circumstances that will give
rise to justifiable doubts as to
his impartiality
3. Art. 5.13 par a (failure or
impossibility to act)

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conducting, participating, initiating,


continuing or reconvening
mediation or retaining a mediator;
and
3. pleadings, motions, manifestations,
witness statements, reports filed or
submitted in arbitration or for
expert evaluation.
Who may request confidentiality?
(Special, Rule 10. 1)
1. A party
who disclosed or
compelled to
2. Counsel; or disclosed information
relative
3. Witness
to the subject of
ADR

When request made? (Special, Rule


10. 2)
At any time there is a need to
enforce the confidentiality of the
information obtained, or to be obtained
in ADR proceedings.
Where to file? (Special, Rule 10. 3)
A petition for protective order may
be filed with the RTC were that order
would be implemented.
NOTE:
If there is a pending court
proceeding in which the information
obtained in an ADR proceeding is
required to be divulged or is being
divulged, the party seeking to enforce
the confidentiality of the information may
file a motion with the court where the
proceedings are pending to enjoin the
confidential information from being
divulged or to suppress confidential
information.
Ground for the request of protective
order (Special, Rule 10. 4)
A protective order may be granted
only if it is shown that the applicant
would be materially prejudiced by an
unauthorized disclosure of the
information obtained, or to be obtained,
during an ADR proceeding
Contents of the motion or petition
(Special, Rule 10. 5)
a. That the information sought to
be protected was obtained, or
would be obtained, during an ADR
proceeding;
b. The applicant would be
materially prejudiced by the
disclosure of that information;
c. The person or persons who are
being asked to divulge the

confidential information
participated in an ADR
proceedings; and
d. The time, date and place when
the ADR proceedings took place.
Notice (Special, Rule 10. 6)
There must be notice shall be
made to the opposing parties
Comment/Opposition (Special, Rule 10.
7)
The comment/opposition must be
filed within fifteen (15) days from service
of the petition.
The comment/opposition may be
accompanied by a written proof that:
1. information is not confidential
2. the information was not obtained
during an ADR proceeding
3. there was a waiver of
confidentiality; or
4. the petitioner/movant is precluded
from asserting confidentiality
Court action (Special, Rule 10. 8)
If the court finds the petition or
motion meritorious, it shall issue an order
enjoining a person or persons from
divulging confidential information.
NOTE:
Principles of confidentiality
applicable to ADR.
1. Confidential information shall not
be subject to discovery and shall
be inadmissible in any adversarial
proceeding, whether judicial or
quasi judicial
2. However, evidence or information
that is otherwise admissible or
subject to discovery does not
become inadmissible or protected
from discovery solely by reason of
its use therein.
Relief against court action: (Special,
Rule 10. 9)
The order enjoining a person or
persons from divulging confidential
information shall be immediately
executory and may not be enjoined while
the order is being questioned with the
appellate courts.
If the court declines to enjoin a
person or persons from divulging
confidential information, the petitioner
may file a motion for reconsideration or
appeal.
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THE ARBITRAL TRIBUNAL

1. Legal age
2. Full-enjoyment of his civil rights
3. Able to read and write
Disqualification

Challenge of Arbitrators (Model, art.


12)
An arbitrator may be challenged
only if circumstances exist that give rise
to justifiable doubts as to his:
1. Impartiality or independence; or
2. WON he possess the qualification
agreed by the parties
Challenge Procedure (Model, art. 13)
GR:
Parties are free to agree on a
procedure for the challenging an
arbitrator
EXCEPTION:
Failing such agreement
Within 15 days, after becoming aware of
the circumstances mentioned , send
written statement of the reason for the
challenge to the arbitral tribunal.
NOTE:
Unless the challenge arbitrator
withdraws from his office OR the other
party agrees to the challenge, the
tribunal shall decide on the challenge.
Unsuccessful Challenge
If the challenge is NOT
SUCCESSFUL, the challenging party may
request, WITHIN 30 DAYS after receipt of
the decision rejecting the challenge, the
court or other authority to decide and the
decision is not subject to appeal
xxxx
Thus, an arbitrator can be remove
by: (I think)
1. Voluntary withdrawal
2. The challenge made by 1 party,
agreed by the other
3. Decision of the tribunal; or
4. Court decision, upon motion
Appointment of Substitute
Arbitrator

1. Blood related or marriage within 6th


degree to EITHER party to the
controversy.
2. If he has or has had financial,
fiduciary or other interest in the
controversy, or has any personal
bias
NOTE:
After appointment but before or
during hearing, the appointed arbitrator
may discover any circumstances likely to
create presumption of bias, shall
immediately disclose such information to
the parties.
Thereafter the parties may agree in
writing:
1. To waive the presumptive
disqualifying circumstance; or
2. To declare the office vacant
Such vacancy shall be filled in the same
manner as the original appointment was
made.
ADR PROVIDER
means the institutions or persons
accredited as mediators, conciliators,
arbitrators, neutral evaluators or any
person exercising similar functions in any
Alternative Dispute Resolution system.
This is without prejudice to the rights of
the parties to choose non-accredited
individuals to act as mediator,
conciliator, arbitrator or neutral evaluator
of their dispute.
DUTIES OF ARBITRATORS
Equal Treatment of Parties (Model,
art. 18)
The parties shall be treated with
equality and each party shall be given a
full opportunity of presenting his case.
Appointment of Arbitrators and

A substitute arbitrator shall be


appointed, according to the rules that
were applicable to the appointment of
the arbitrator being replaced
QUALIFICATION
Any person appointed to serve as an

Grounds for Challenge (I think, it is


part of the duties of the arbitrators)
MAJORITY DECISION
GR: (Model, art. 29)
In an arbitral proceeding with more
than 1 arbitrator, any decision of the

arbitrator must be: (RA 876, sec. 10)


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tribunal shall be made by a majority


decision of all its members
EXCEPTION:
UNLESS otherwise agreed by the
parties
AWARD

parties, the arbitral tribunal or appointing


authority failed or refused to act within
the period provided in paragraphs U) and
(k) of this Article, the arbitration
proceeding shall be suspended until after
the court shall have decided the incident.
The arbitration shall be continued
immediately after the court has delivered
an order on the challenging incident.

30 days after the closing of the


hearing or submission of the parties of
their respective briefs or the oral hearing
was waived, the tribunal shall render its
written award.
UNLESS otherwise agreed by the
parties. The period may be further
extended.
POWER OF ARBITRATORS TO DECIDE
ADMISSIBILITY, RELEVANCE,
MATERIALITY AND WEIGHT OF ANY
EVIDENCE
The power conferred upon the
arbitral tribunal includes the power to
determine the admissibility, relevance,
materiality and weight of any evidence.
(Model, art. 19)
CHALLENGE OF ARBITRATORS
(additional)
An arbitrator may be challenged only if:
(special, 5.11)
1. circumstances exist that give rise
to justifiable doubts as to his/her
impartiality or independence;
2. he/she does not possess
qualifications as provided for in this
Chapter or those agreed to by the
parties;
3. he/she is disqualified to act as
arbitration under these Rules;
4. he refuses to respond to questions
by a party regarding the nature
and extent of his professional
dealings with a party or its counsel.
NOTE: (special, 5.11)
Until a decision is made to replace
the arbitrator under this Article, the
arbitration proceeding shall continue
notwithstanding the challenge, and the
challenged arbitrator shall continue to
participate therein as an arbitrator.
However, if the challenge incident is
raised before the court, because the

ARBITRATOR SERVING AS MEDIATOR


(VICE VERSA)
No arbitrator shall act as mediator
in any proceedings in which he is acting
as mediator.
Conversely, no mediator shall act
as arbitrator in any proceeding in which
he acted as mediator. (Special, 2.6)
GR:
No person shall, having been
engaged and having acted as mediator of
a dispute between the parties, following
a failed mediation, act as arbitrator of
the same dispute.
EXCEPTION:
Unless the parties authorize, in a
written agreement, the mediator to hear
and decide the case as an arbitrator.
NOTE:
The mediator who becomes an
arbitrator pursuant to this Rule shall
make an appropriate disclosure to the
parties as if the arbitration proceeding
had commenced and will proceed as a
new dispute resolution process, and
shall, before entering upon his/her
duties, execute the appropriate oath or
affirmation of office as arbitrator in
accordance with these Rules.
LIABILITY OF ARBITRATORS
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.(RA 9285, sec. 5)
APPOINTING
AUTHORITY

Appointing authority
Shall mean, the person or
institution named in the arbitration
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agreement as the appointing authority;


or the regular arbitration arbitration
institution under whose rules the
arbitration is agreed to be conducted.
(Special, rule 6.1)
DEFAULT OF APPOINTMENT OF
ARBITRATOR
Institutio
Ad Hoc
Court
nal
Arbitratio
Arbitrati
n
on
The
The
The court will
institution national
act as
appoints
president
appointing
the
of the
authority only
arbitrator
Integrated
if:
under
Bar of the
1. In
their rules Philippines
institutio
(IBP) or his
nal, the
duly
institutio
authorized
n fails to
representat
appoint
ive
2. In ad
hoc, the
IBP Pres
or rep.
failed to
appoint.
TERMINATION OF MANDATE OF
ARBITRATORS

Who may request termination and


on what ground?
Any of the parties to an arbitration
may request for the termination of the
mandate of an arbitrator where an
arbitrator becomes:
1. De jure or De facto
2. Unable to perform his function
3. For other reasons fails to act
without undue delay
4. Upon request of any party, fails or
refuses to withdraw from his office
When to request
If an arbitrator refuses to withdraw
from his office, and subsequently, the
Appointing Authority fails or refuses to
decide on the termination of the
mandate of that arbitrator within such
period as may be allowed under the
applicable rule or, in the absence thereof,
within thirty (30) days from the time the
request is brought before him, any party
may file with the court a petition to
terminate the mandate of that arbitrator.
No motion for reconsideration or
appeal
Any order of the court resolving the
petition shall be immediately executory
and shall not be subject of a motion for
reconsideration, appeal or petition for
certiorari.

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