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Oath of Arbitrators

 An Arbitrator must be sworn by an officer authorized by law to administer an oath or be required


to make an affirmation
 to faithfully and fairly hear and examine matters in controversy and
 to make a just award according to the best of his/her ability and understanding.
 A copy of the arbitrator’s oath or affirmation shall be furnished to each party to the arbitration.
 Each party may object to the commencement or continuation of an arbitration proceeding if the
arbitrator does not take an oath of affirmation, and if the arbitrator refuses to take an oath of
affirmation as required by law and the IRR, he shall be replaced.
 Failure to Object to the absence of an oath or affirmation
 shall be deemed a waiver of such objection and
 the proceedings shall continue in due course and
 the absence of an oath or affirmation may not be later used as a ground to invalidate the
proceedings.
Rule on Waiver
 1976 UNCITRAL Arbitration Rules
Any party who knows that any provision of, or requirement under, these Rules has not
been complied with and yet proceeds with the arbitration without promptly stating his objection
to such non-compliance, shall be deemed to have waived his right to object.
 Model Law Article 4
A waiver of a mandatory requirement of the law is implied form the failure to make a
seasonable objection to such non-compliance and proceeding with the arbitration.

Procedure for Conducting Hearing

Commencement of Arbitral Proceedings


 Arbitral proceedings shall be deemed to commence on the date on which the notice of arbitration
is received by the respondent.
 Ad hoc arbitration: arbitration is commenced by the claimant upon delivering to the respondent
a demand for arbitration.
 Where there is prior arbitration agreement
- a demand may be in any form stating:
a. the name, address and description of each of the parties;
b. a description of the nature and circumstances giving rise to the claim;
c. a statement of the relief sought, including the amount of the claim;
d. the relevant agreements, if any, including the arbitration agreement, a copy of which shall be
attached; and
e. appointment of arbitrators and/or demand to appoint.
- If the agreement provides for the appointment of a sole arbitrator, the demand shall include
an invitation of the claimant to the respondent to meet and agree upon such arbitrator at the
place, time and date stated therein which shall not be less than 30 days from receipt of the
demand.
- If the agreement provides for the establishment of an arbitral tribunal of 3 arbitrators, the
demand shall:
a. name the arbitrator appointed by the claimant
b. include the curriculum vitae of the arbitrator appointed by the claimant
c. latter’s acceptance of the appointment

 Where there is no prior arbitration agreement


- Arbitration may be initiated by one party through a demand upon the other to submit their
dispute to arbitration
- Arbitration shall be deemed commenced upon the agreement by the other party to submit
the dispute to arbitration.
- Demand of the claimant shall require the respondent to name his/her/its arbitrator within a
period which shall not be less than 15 days from receipt of the demand. (may be extended by
agreement of the parties).

 Service of Demand
- US Courts: there is no due process violated where a party is served with notice in accordance
with such arbitration rules.

Challenge to the Jurisdiction of the Tribunal


 A respondent may object to the demand for arbitration by the other party upon any of the
following grounds:
a. The arbitration agreement is inexistent, void, unenforceable or not binding upon either party
to the dispute for any reason, including the fact that such party is not privy to the arbitration
agreement; or
b. The dispute is not arbitrable or is outside the scope of the arbitration agreement; or
c. The dispute is under the original and exclusive jurisdiction of a court or quasi-judicial body.
 Legal duty of the respondent where such objection is made:
a. To name his/her/its arbitrator for a tribunal; or
b. Participate in the selection and appointment of a sole arbitrator.
When Issue is raised concerning Existence, Validity or Enforceability of Arbitration Agreement
 Despite the pendency of such a petition before the court, arbitral proceedings may nevertheless
be commenced and continue to rendition of an award while the issue is pending before the court.
 Aggrieved party:
- May not ask the court to enjoin the default appointment of an arbitrator, or the constitution
of a tribunal, or the tribunal from continuing the proceeding until award
- May invoke the pendency of such court proceeding as a ground for suspension of the arbitral
proceedings.
 Arbitral tribunal may decide to either suspend the arbitration until the court has made a decision
on the issue or continue with the arbitration.

Policy on Arbitration
 Where the parties have agreed to submit their dispute to arbitration, courts shall refer the parties
to arbitration pursuant to the ADR Act bearing in mind that such arbitration agreement is the law
between the parties and that they are expected to abide by it in good faith.
 When a court is requested to refer the parties to arbitration in accordance with their arbitration
agreement, it shall NOT deny the request for any of the following reasons:
a. The referral tends to oust a court of its jurisdiction;
b. The court is in a better position to resolve the dispute subject of arbitration;
c. The referral would result in multiplicity of suits;
d. The arbitration proceeding is in a foreign country;
e. One or more of the issues are legal and one or more of the arbitrators are not lawyers;
f. One or more of the arbitrators are not Philippine nationals; or
g. One or more of the arbitrators are alleged not to possess the required qualification under the
arbitration agreement or law.

Adoption of Rules to Govern the Proceeding


 Depending upon whether the arbitration is ad hoc or institutional, the parties are given autonomy
to decide the arbitration rules to govern the proceeding.
 When parties agree to submit their dispute to arbitration under institutional rules, they are bound
by them, subject to such changes or modifications that they are permitted to make. Parties may
choose to be governed by whatever rules they wish on how an arbitration itself will be conducted.

Rules to Govern on Multi-Party Arbitration


- The IRR shall be applicable

 Where a single arbitration involves more than two parties


- subject to such modification as the arbitral tribunal may deep appropriate in view of the
anticipated complexities of a multi-party arbitration, subject to the right of the parties to
determine the rules of procedure under Model Law Article 19, provided in every case that
such adopted shall not violate the right of the parties to equal treatment
 Problem of additional claimants, one or more of whom are not parties to the operative arbitration
agreement
a. Assumption: all such claimants have agreed to be parties, and thereby giving the respondent
the opportunity to object to their inclusion on jurisdictional grounds either in a motion to
dismiss or a special defense in the answer to the request for arbitration.
b. If the claimant/s included in the request for arbitration a respondent who is not a party to the
operative arbitration agreement, the respondent may object, on jurisdictional grounds, to the
inclusion of such additional respondent.
When objection, on jurisdictional grounds, is timely filed.
- The arbitral tribunal must hear the parties on the issue of whether the additional claimant or
additional respondent whose inclusion in the arbitration is objected to is bound by the
operative arbitration agreement.

Rules concerning Consolidation/ Joint Hearing


 Unless the parties agree to confer such power on the arbitral tribunal, the tribunal has no power
to order consolidation of arbitration proceedings or concurrent hearings.

Procedure for Conducting Arbitration Proceedings


1. Filing of Statements of Claim and Defense
 Claimant: shall state
 Facts supporting his/her/its claim
 Points at issue
 Relief or remedy sought
 Respondent: shall state
 His/her/its defense in respect of these particulars
 The parties may submit with their statements all documents they consider to be relevant
or may add reference to the documents or other evidence they will submit.
 Unless otherwise agreed by the parties, either party may amend or supplement
his/her/its claim or defense 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.
 The arbitral tribunal shall terminate the proceedings if the claimant fails to communicate
his/her/its statement of claim as required without showing sufficient cause, unless
otherwise agreed by the parties.
2. Arbitration Procedure
 Ad hoc arbitration – shall be determined by the arbitrator with the agreement of the
parties
 Institutional arbitration – the applicable rules of procedure of the arbitration institution
shall be followed.
 Default of agreement of the parties – arbitration procedure shall be as provided in the
IRR
Pre-hearing conference
 Called within 30 days from the appointment of the arbitrator or the constitution of
the arbitral tribunal to discuss and agree upon the following matters
(a) The venue or place/s where the arbitration proceeding may be conducted
(b) The manner of recording the proceedings
(c) The periods for communication of the statement of claims with or without
counterclaims and answer to the counterclaim/s and the form and contents of
such pleadings
(d) The definition of the issues and the summary of the claims and counterclaims of
the parties
(e) The manner by which evidence may be offered, submission of sworn written
statements, cross examination and further examination of witnesses
(f) The delivery of certain types of communications
(g) The issuance of subpoena or subpoena duces tecum by the arbitral tribunal
(h) The manner by which expert testimony will be received
(i) The possibility of either party applying for an order granting interim relief
(j) The possibility of a site or ocular inspection
(k) The amount to be paid to the arbitral tribunal
(l) Other relevant matters

 in the default of agreement, the arbitral tribunal shall have the discretion and
authority to make the decision, although in making a decision, regard shall be given
to the views expressed by both parties.

3. Confidentiality of Proceedings
 Only those persons who have a direct interest in the controversy that is the subject
of arbitration shall have the right to attend any hearing --- since arbitration is a private
dispute resolution process

Summoning Witnesses by Subpoena and Subpoena Duces Tecum


Arbitrators
- Have the power to subpoena witnesses and documents when the relevancy of the testimony
and the materiality thereof has been demonstrated to the arbitrator.
Arbitral Tribunal or the party
- May request from a court assistance in taking evidence ; the court may grant the request
within its competence and according to the rules on taking evidence.

Hearing by Arbitrators
Hearing
- Similar to judicial hearing EXCEPT that the rules of evidence are liberally construed, and
technicalities of law and procedure are not strictly followed.
- A party who, after having received due notice of the date of hearing of a case, fails to appear
shall be deemed to have waived his right to appear and submit evidence in the case.
IRR: The hearing may proceed in the absence of a party who fails to obtain an adjournment
thereof or who despite due notice fails to be present by himself/herself or through a
representative at such hearing.
- The parties are allowed to present their evidence through the testimony of witnesses
- Arbitral Tribunal - Shall administer oaths to or require affirmation from all witnesses directing
them to tell the truth
- Accepted Method in arbitration: Instead of the usual direct examination, a party may submit
the sworn written statements of his witnesses to which may be attached the documentary
evidence which the witnesses, in their sworn statements, identify.
Right of Representation
- The persons who may appear for a party in arbitration:
a. The party himself,
b. A person in his regular employ duly authorized in writing by the party represented, or
c. An attorney-at-law duly authorized to practice law
Right to Due Process
- Every man is accorded reasonable opportunity to be heard.
- Among the “cardinal primary rights” which should be observed and respected in
administrative adjudications in order to comply with the imperatives of due process
Rules of Evidence
- SC: Arbitrators are NOT bound by the rules of evidence
- Arbitration Law requires arbitrators to “receive as exhibits in evidence any document which
the parties may wish to submit”
Right of Cross-Examination; Right to a Fair Hearing
- The issue of whether the curtailment of the cross-examination of a witness by a party’s
counsel deprived such party of hits right to due process is resolved by determining whether
such party was or was not given the opportunity to be heard at a meaningful time and in a
meaningful manner.
- Fair hearing is one that meets the minimal requirement of fairness – adequate notice, a
hearing on the evidence, and an impartial decision by the arbitrator.
Use of Experts
- an expert engaged by an arbitral tribunal is like any other witness who is subject to
examination by the parties on the basis of his report, unless the parties have agreed that the
report of the expert shall be binding on the parties and the arbitral tribunal.

Briefs
Closure of Hearings
- necessary to indicate that no further evidence will be received from the parties.
- commences the period for the arbitrators to prepare and release the reward.
- arbitrators shall specifically inquire of all parties whether they have any further proof or
witnesses to present
- arbitrators shall declare the hearing closed UNLESS the parties have signified an intention to
file briefs
Briefs
- definite time for filing must be fixed by the arbitrators
- may be filed by the parties within 15 days after the close of the oral hearings
- Reply Briefs -- if any, shall be filed within 5 days following such 15-day period
Reopening of Hearing
Hearing
- may be reopened by the arbitrators on their own motion or upon the request of any party,
upon good cause, shown at any time BEFORE the award is rendered.
- The effective date for the closing of hearings shall be the date of the closing of the reopened
hearing
Proceeding in Lieu of Oral Hearing
In arbitration practice, and subject to such rules of procedure agreed upon by the parties, the
arbitral tribunal may conduct the arbitration in such manner as it considers appropriate subject to two
important conditions:
a. that the parties are treated with equality, and
b. that at any stage of the proceedings each party is given a full opportunity of presenting his case.