ADR Reviewer Atty Higuit

ADR (based on ATTY HIGUIT’S OUTLINE)-CHARMAGNE FERRER’S REVIEWER 1Contents I. INTRODUCTION..............................................2 1.1 BRIEF DESCRIPTION OF ADR SYSTEM 2 Alternative Dispute Resolution (ADR)..................2 1.2 BASIC PRINCIPLE OF ADR.................2 1.3 UNDERSTANDING DISPUTE RESOLUTION OPTIONS 3 1.4 Advantages/Benefits and Disadvantages of Alternative Dispute Resolution 1.4.1 Benefits of ADR.............................5 1.4.2 Disadvantages of ADR...................8 1.4.3 BENEFITS OF ALTERNATIVE DISPUTE RESOLUTION 1.5 2 COMPARISON BETWEEN Litigation AND ADR 1.5.1 Litigation (Court Based Adjudication) 10 1.5.2 Alternative Dispute Resolution (ADR) 10 1.5.3 Litigation and ADR Contrasted.....11 1.6 LIMITATION OF ADR IN GENERAL....11 1.7 SUBJECT OF ADR.............................11 5 9 10 INTERNATIONAL ALTERNATIVE DISPUTE RESOLUTION/ PEACEFUL SETTLEMENT OF INTERNATIONAL DISPUTE..............................17 2.1 INTRODUCTION TO PUBLIC INTERNATIONAL LAW AND PRIVATE INTERNATIONAL LAW 17 Public international law......................................17 Private international law.....................................17 Conflicts between public international law and national sovereignty 17 2.1.1 BASIC PRINCIPLES OF INTERNATIONAL LAW (SOVEREIGNTY, JURISDICTION, INDEPENDENCE etc.)...............................18 2.1.1.1 Sovereignty.........................................18 2.1.1.3 Independence.....................................19 2.1.2 ARTICLE 33 PARAGRAPH 1 OF THE UN CHARTER 2.1.3 INTERNATIONAL COURT OF JUSTICE 2.2 21 21 RELEVANT ALTERNATIVE DISPUTE SETTLEMENT INSTITUTIONS 2.2.2 21 INTERNATIONAL COURT OF ARBITRATION (INTERNATIONAL CHAMBER OF COMMERCE).............................................23 Membership...................................................23 Governing bodies...........................................24 ADR (based on ATTY HIGUIT’S OUTLINE)-CHARMAGNE FERRER’S REVIEWER 2 World Council.............................................24 Executive Board.........................................24 International Secretariat.............................24 National Committees..................................24 Finance Committee....................................24 Dispute Resolution Services..........................24 Policy and business practices........................24 2.2.3 INTERNATIONAL CENTER FOR SETTLEMENT OF INVESTMENT DISPUTES (ICSID) (CONVENTION ON THE SETTLEMENT OF INESTMENT DISPUTE BETWEEN STATES AND NATIONALS OF OTHER STATES).............24 2.2.4 UNITED NATIONS COMMISSION FOR INTERNATIONAL TRADE LAW (UNICITRAL MODEL LAW ON INTRNATIONAL COMMERCIAL ARBITRATION-1985) 26 History...........................................................26 Membership...................................................26 Conventions...................................................27 Model laws.....................................................27 CLOUT (Case Law on UNCITRAL Texts).......27 2.2.5 WORLD TRADE ORGANIZATION (MARRAKESH AGREEMENT) (DISPUTE SETTLEMENT UNDERSTANDING)...................................27 2.3 ENFORCEMENT AND RECOGNITION OF AWARDS 36 Convention on the Recognition and Enforcement of Foreign Arbitral Awards Contents........................................................36 Background....................................................36 Summary of provisions..................................37 Parties to the New York Convention...............37 United States Issues......................................37 2.4 TYPES OF ADR..................................38 2.4.1 1. Negotiation...............................38 2.4.2 Assisted negotiation.....................38 2.4.3 2. Mediation.................................38 2.4.4 3. Conciliation..............................38 2.4.5 4. Arbitration.................................38 Case presentation or mini-trial....................41 Independent expert appraisal or early neutral evaluation 41 36 ADR (based on ATTY HIGUIT’S OUTLINE)-CHARMAGNE FERRER’S REVIEWER 3 Litigation.....................................................41 3 2.4.6 5. INQUIRY AND FACT FINDING 41 2.4.7 6. GOOD OFFICES......................41 DOMESTIC ARBITRATION........................41 3.1 INTRODUCTION TO DOMESTIC COMMERCIAL DISPUTE RESOLUTION 3.2 ALTERNATIVE DISPUTE RESOLUTION ACT OF 2004 41 41 Republic Act No. 9285...................................41 April 2, 2004...................................................41 3.3 REPUBLIC ACT NO. 876 ARBITRATION LAW OF THE PHILIPPINES 3.4 A.M. No. 07-11-08-SC 50 SPECIAL RULES OF COURT ON ALTERNATIVE DISPUTE RESOLUTION September 1, 2009...............55 3.5 DEPARTMENT CIRCULAR NO. 98....87 3.6 OTHER SC ISSUANCES ON ADR....126 3.7 JUDICIAL DISPUTE RESOLUTION..126 Judicial dispute resolution (JDR).....................126 I. INTRODUCTION 1. BRIEF DESCRIPTION OF ADR SYSTEM Alternative Dispute Resolution (ADR) also known as external dispute resolution in some countries, such as Australia includes dispute resolution processes and techniques that act as a means for disagreeing parties to come to an agreement short of litigation. It is a collective term for the ways that parties can settle disputes, with (or without) the help of a third party. Despite historic resistance to ADR by many popular parties and their advocates, ADR has gained widespread acceptance among both the general public and the legal profession in recent years. In fact, some courts now require some parties to resort to ADR of some type, usually mediation, before permitting the parties' cases to be tried (indeed the European Mediation Directive (2008) expressly contemplates socalled "compulsory" mediation; attendance that is, not settlement at mediation). The rising popularity of ADR can be explained by the increasing caseload of traditional courts, the perception that ADR imposes fewer costs than litigation, a preference for confidentiality, and the desire of some parties to have greater control over the selection of the individual or individuals who will decide their dispute. Some of the senior judiciary in certain jurisdictions (of which England and Wales is one) are strongly in favor of the use of mediation to settle disputes.1 A type of dispute resolution that seeks to limit the costs of litigation by using alternative, often out-ofcourt means, such as arbitration, conciliation and summary possession proceedings. Alternative dispute resolutionoptions are voluntary, and often involve a neutral third party to make decisions.2 1. BASIC PRINCIPLE OF ADR • ADR is based on several key principles. First, consensual processes (participation, scope and structure) are more likely to result in outcomes satisfactory to the disputants than a solution imposed by a court. Inherent in this principle is the ability of the parties to structure a process that is tailored to the situation and to the dispute at hand. There is ample experience demonstrating that disputants are more likely to achieve outcomes that serve all disputants’ interests and purposes -- the “win/win” solution -- than solutions imposed by an outside decision maker. • The second key principle is the involvement of a third-party neutral whose presence can improve the dynamics of the dialogue needed to achieve a settlement and, 1http://en.wikipedia.org/wiki/Alternative_dispute_resolution 2http://www.businessdictionary.com/definition/alternative-disputeresolution.html#ixzz204cSk0Xz ADR (based on ATTY HIGUIT’S OUTLINE)-CHARMAGNE FERRER’S REVIEWER 4 in environmental disputes, knowledge and expertise to evaluate the merits and to help frame options for solution if so desired by the parties. The third party’s role is to assist in the process, not to dictate the outcome. This individual is neutral in the sense of having no stake in the outcome or in the parties. A thirdparty neutral has no authority except as granted under the order or agreement defining the ADR process. • One of the principal objectives of the ADR process is to help the parties communicate with each other civilly, by providing a clear statement of the interests driving the dispute and, most importantly, by truly listening to the other side of the dispute. Parties often lack a clear idea of what they are fighting for, much less a good idea of what needs are driving their opponents. • Finally, ADR processes generally are confidential except as otherwise agreed by the parties, with the exception of public policy disputes that often facilitate in full public view. Agreements to engage in most ADR processes typically have a confidentiality clause. Mediation conducted in Michigan court proceedings is expressly made confidential by MCR 2.411(C)(5). As of mid 2010, the confidentiality provisions under MCR 2.411 are being considered for revision. SCAO August 2010 Report on MCR 2.411. • When the ADR process is not ordered under MCR 2.411, the parties must provide for confidentiality by agreement. Where disputes are mediated before or during civil litigation, MRE 408 and FRE 408 make settlement offers and conduct and statements made in settlement negotiations (i.e., during the ADR process), not admissible. These rules, however, do not require the exclusion of evidence otherwise discoverable merely because it is presented in the course of settlement discussions. • The Michigan mediation rule expressly provides that a mediator may not disclose anything that transpired during the mediation to the trial judge except the date of completion of the process, who participated in the mediation, whether settlement was reached and whether further ADR proceedings are contemplated. MCR 2.411(C)(3). Best practice in drafting the mediation agreement should provide the express requirement that the mediator make his or her report to the court in writing with copies to the parties, so that the parties can be assured this rule has been observed. Note that this rule does not permit the mediator to report to the trial court whether any party appeared to be acting in good faith. • Likewise, communications made during ADR processes convened by a federal court are protected from disclosure, 28 USC 652(d), although the scope of the protection is not as broad as under the Michigan Court Rules. 3 In its August 2005 resolution (Resolution ALJ-185), the Commission announced five basic principles that are the foundation of the CPUC ADR program: VOLUNTARY The parties usually must agree to submit their dispute to mediation or early neutral evaluation. An ALJ, however, may require parties to attend facilitated workshops, settlement conferences, or meet with a neutral to explore the feasibility of mediation. TIMELINESS ADR should shorten, not prolong, proceedings. But even if a negotiated settlement takes longer, the result may be more beneficial to all. GOOD FAITH Those who engage in ADR should do so in an attempt to reach agreement--not to delay or secure tactical advantage. CONFIDENTIALITY Most ADR processes require confidentiality so that the parties' fundamental interests can be explored. COMMISSION APPROVAL The CPUC will expeditiously approve settlements that are legally sufficient.4 1. UNDERSTANDING DISPUTE RESOLUTION OPTIONS There are many ways to approach dispute resolution. The great majority of problems encountered by small business are resolved through simple discussion and common sense between the parties and do not escalate into a dispute. In virtually all instances, small businesses should at first attempt to resolve their disputes through direct discussion and negotiation. Disputes will occur, however, where there is a lack of communication, where there are unrealistic expectations or where there is a grievance that cannot be resolved through direct discussion. When a dispute occurs, each party has a choice about the dispute resolution method that they would like to pursue. Unfortunately, litigation is usually the norm and dispute resolution is often approached as a matter between lawyers and the Courts. There are, however, a variety of other approaches available which may save time and money and preserve business relationships. Dispute resolution options for small business range from negotiation-based methods, where the parties have full control over the outcome (generally known as 'alternative dispute resolution' - ADR), to adversarial methods where the parties have less control over the outcome (such as arbitration and litigation). Where a negotiated settlement is reached through ADR, the terms of the settlement, once agreed and signed by the 3http://envdeskbook.org/CH19/Ch19ADR.htm#_Toc325551391 4 http://www.cpuc.ca.gov/PUC/ADR/adrprinciples.htm ADR (based on ATTY HIGUIT’S OUTLINE)-CHARMAGNE FERRER’S REVIEWER 5 parties, are legally binding and can be enforced if necessary. The chart below sets out some of the advantages and disadvantages of different approaches to dispute resolution. ADVANTAGES METHOD DISADVANTAGES Parties Control Outcome Time - Efficient Cost - Efficient Confidential → Alternative Dispute Resolution (ADR) ← Does Not Establish Legal Precedent Not Open To Public Scrutiny Maintains Business Relationships Non-Adversarial, Informal Process Not Appropriate For Fraud Or Criminal Behaviour Appropriate For Fraud Or Criminal Matters Can Establish a Legal Precedent Appropriate Where One Party Has No Intention Of Compliance → Adversal Approaches litigation arbitration ← Parties Have Limited Control Over The Outcome High Cost & Lengthy Process May Destroy Business Relationships AN EXPLANATION OF ALTERNATIVE DISPUTE RESOLUTION METHODS ASSISTED NEGOTIATION • The parties engage a professional negotiator or 'go-between' to assist parties reach a desired result. It is usually informal and the negotiator can either be appointed by one party or both. In the latter situation he/she is a joint negotiator. This method is often helpful in smaller disputes where parties are still talking to one another and need help to break an impasse, and where they have identified all the issues to be negotiated. MEDIATION • Mediation is a process where an independent person is used to assist the parties in dispute to find a mutually acceptable solution. The mediator will systematically work through the issues, help identify alternatives, and facilitate final agreement. The process is non-adversarial and focuses on the parties' resolving the dispute themselves using the skills of a mediator. The key principle of mediation is that the parties work together to arrive at an agreement that suits both. This is in contrast to litigation and arbitration where a judge or arbitrator imposes a decision which may be disappointing for one or both parties. • • A mediator is appointed by the parties to help establish effective communication and by doing so find a solution which satisfies both their needs and interests. The informal process is speedy and cost effective and caters for on-going business relationships. INTERMEDIATION • Similar to Mediation in concept but more sophisticated. The neutral third party closely interacts with the parties in dispute to assess all relevant material, identify key issues, and most importantly, helps to design a process that will lead to resolution of the dispute. • • The process involves separate meetings with the parties at their offices to conduct extensive reality testing, and analysis of parties' legal, commercial and financial positions. The process utilises creative thinking techniques and is suitable for more complex, large or sensitive matters. FACILITATION • The parties appoint a neutral facilitator to manage the dispute resolution process, identify issues and apply specialist techniques to achieve the desired outcome. The facilitator assists by preparing an agenda, chairing meetings, distributing relevant information between the parties and steering them to reach agreed objectives. The process is less formal and more flexible than Mediation. It has wide application and is often used where there are several parties or groups involved with differing points of view, such as creditors or multi-party claimants, joint venture negotiations, and environmental and planning disputes. EXPERT DETERMINATION/RECOMMENDATION • The parties agree to an independent expert to provide a report on specific aspects of a dispute by examining relevant documentation and material. The expert is usually commissioned to report on technical matters such as standards, compliance, ADR (based on ATTY HIGUIT’S OUTLINE)-CHARMAGNE FERRER’S REVIEWER 6 quality specifications, quantification of loss or similar issues. The expert may be asked to provide a recommendation or a determination on the matter depending on the circumstances. PARTNERING • Often used for long term contracts or in the building/construction industries and in joint venture type projects. A Partnering agreement or charter is based on the parties' need to act in good faith and with fair dealing to one another. The Partnering process focuses on the definition of mutual objectives, improved communication, the identification of likely problems and development of formal problem solving and dispute resolution strategies. It is useful, for example, where there is a need to complete a technical or building project with a minimum of disruption and cost and within a tight time frame. AN EXPLANATION OF ADVERSARIAL DISPUTE RESOLUTION METHODS LITIGATION • Litigation is an adversarial legal process conducted in a Court of law, in accordance with strict procedures, where the parties present legal arguments and evidence to support their claims before a judge. The judge applies the relevant law to the evidence, resulting in a judgement in favour of one of the parties involved. ARBITRATION • Arbitration is an adversarial process, agreed by the parties in dispute, in which each party presents legal arguments and evidence, in accordance with formal procedures, to a mutually agreed arbitrator. The arbitrator makes a determination in favour of one of the parties. This determination is usually legally binding. 1. Advantages/Benefits and Disadvantages of Alternative Dispute Resolution The take-up of ADR depends on a combination of three critical factors. First, the extent to which disputants and their advisors are aware of ADR. Second, the adequacy of the supply of ADR services for those that would wish to take-up ADRservices. Third, the perceived advantages and disadvantages of ADR. This section is concerned primarily with the third of those factors. It notes, however, the low level of awareness of ADR among disputants, the critical and influential position of lawyers in determining whether disputants seek resolution through ADR, and comments on the extent to which the court system raises awareness about the potential for ADR as a dispute resolution pathway. 1. Benefits of ADR ADR has been both; increasingly used alongside, and integrated formally, into legal systems internationally in order to capitalise on the typical advantages of ADR over litigation: Suitability for multi-party disputes Flexibility of procedure - the process is determined and controlled by the parties the dispute Lower costs Less complexity ("less is more") Parties choice of neutral third party (and therefore expertise in area of dispute) to direct negotiations/adjudicate Likelihood and speed of settlements Practical solutions tailored to parties’ interests and needs (not rights and wants,as they may perceive them) Durability of agreements Confidentiality The preservation of relationships;[11] and the preservation of reputations.5 The international literature on ADR identifies five major outcomes from ADR. They are: increased settlement improved satisfaction with the outcome or manner in which the dispute is resolved among disputants reduced time in dispute reduced costs in relating to the dispute resolution increased compliance with agreed solutions. Among stakeholders there is broad agreement that dispute resolution throughADR mechanisms can be beneficial. Nevertheless, there are some significant variations among stakeholders about the extent and nature of those benefits for disputants. ADR practitioners are most enthusiastic about the benefits of ADRtake-up. Lawyers and disputants tend to be more qualified with regard to the actual benefits associated with ADR. ADR Practitioners' View of ADR Benefits Participants in the ADR Practitioners Survey were convinced of the efficacyof ADR techniques in resolving disputes that were already or could be filed in the District or High Courts. Two thirds of the respondents (66 percent) reported that they believed that more that 80 percent of disputes could be resolved through ADR. Only 4 percent reported that they believed that 55 percent or fewer disputes were amenable to effective resolution through ADR (Table 4.1). ADR Practitioners' Estimates of Disputes Effectively Settled by ADR(ADR Practitioners Survey n=139)* Proportion of Disputes Settled by ADR ADRPractitioners 5http://en.wikipedia.org/wiki/Alternative_dispute_resolution#Benefits It was noted in the ADR practitioner focus groups.ADR (based on ATTY HIGUIT’S OUTLINE)-CHARMAGNE FERRER’S REVIEWER 7 Responses % 0-20 percent of disputes 0 0 21-30 percent of disputes 1 <1 31-40 percent of disputes 0 0 41-50 percent of disputes 4 3 51-60 percentof disputes 9 6 61-70 percent of disputes 5 4 71-80 percent of disputes 28 20 81-90 percent of disputes 32 23 91-100 percent of disputes 60 43 * Six missing cases.4 . It is for the latter reason that arbitrators have so frequently been used in technical sectors such as the building industry.4 Want speedy resolution 159 81.2). • Lawyers' Perceptions of ADR Benefits The majority of lawyers believe that disputants seek ADR resolution ofdisputes in an effort to: reduce the cost of a dispute speed resolution. that not all ADRtechniques generated benefits in the same way or to the same extent. ADR Practitioner Views on the Relative Potential of Arbitration and Mediation Arbitration Mediation Reduced financial costs Low-Medium Medium-High Flexible solution Low High Confidentiality High High Ability to influence outcome Low High Disputant control Medium High Disputants satisfaction Low-High Medium-High Speedy resolution High High ADR practitioners see the real benefits of arbitration lying in the abilityof the disputants to select an arbitrator by mutual agreement and the considerable specialist expertise an arbitrator may bring to the resolution of a dispute with substantial technical components. A strong distinction was made between mediation and arbitration. and reduce uncertainty around the outcome of judgment in the court system (Table 4.1 Uncertainty of court outcome 142 72. Table 4. Lawyers' Perceptions of Disputants' Reasons for ADR Take-up* (Lawyers Survey) Perceived Disputant Reason Responses % of Lawyers (n=196) Want to reduce costs 183 93.2 represents ADRpractitioners' assessment of the relative potential of arbitration and mediation in relation to the benefits typically associated with ADR. however. 6% Judicial support 14. statute or existing agreement 61 31.9% 10.7 Trained LEADR Accreditation Workshop 2 2. the willingness of disputants to engage in a resolution process. the experience of the ADR practitioners (Table 4.5% 40.0% Experienced ADR practitioner 62.1 Desire for creative solution 48 24.8 Desire for more control over process and outcome 80 40.5% 60. and.3% 37. however. Overall.3% N % N % N % Combines legal practice with ADR Practice 8 10.ADR (based on ATTY HIGUIT’S OUTLINE)-CHARMAGNE FERRER’S REVIEWER 8 Preservation of ongoing relationship 86 43.5 Concerns about court procedures [8] 39 19. For most lawyers the effectiveness of ADR is contingent on two major factors.9 * Multiple response.7% 15. the remedies sought and the outcomes.8 Privacy and confidentiality 74 37.9 Desire for compromise solution 82 41.8% 68. It is unclear why those differences emerge. 13. For lawyers.9% 10.6% 14. Firstly.8 17 26.1% Supportive counsel 40. 40.0% 66. Lawyers working in the High Court or equally in the District Court and High Court were over-represented among those who saw counsel support as an important factor.4).3).0% 80.6 12 20. ADR Training* and ADR Practice Among Lawyers (Lawyers Survey) Lawyers Working Primarily in District Court (n=74) Lawyers Working Primarily in HighCourt (n=64) Lawyers Working Equally in High Court and District Court (n=58) Lawyers' Perceptions of Determinants of ADR Efficacy (Lawyers Survey) Perceived Determinant Total Lawyers Working Primarily in District Court (n=74) Lawyers Working Primarily in High Court (n=64) Lawyers Working Equally in High Court and District Court (n=58) Disputant willingness 76.6% 45.8% 78. in relation to the importance of judicial and counsel support as factors in the efficacy of ADR.3% The quantitative data does indicate some of the subtleties around this issue. Lawyers working primarily in the District Court were significantly more likely than lawyers working primarily in the High Court to see judicial support as an important factor in the efficacy ofADR.8% 21.3 percent of lawyers saw counsel support as an important determinant. The High Court lawyers are more likely to be trained in and/or engaged in delivering ADR services than the lawyers working primarily in the District Court (Table 4.1% 69. secondly. Mediation and negotiation are seen as more likely than arbitration to generate ADR benefits including: increased opportunities to resolve a dispute in a way satisfactory to the parties increased likelihood of the parties complying with the remedies or solutions generated through ADR reductions in time delays reductions in costs.7% Ongoing relationship between disputants 14. and maintenance of confidentiality about both the dispute.8 Directed by contract.7 13 20.3 . reaping the potential benefits of ADR is by no means straightforward. The lawyer survey data suggests that there may be some relationship between the ADR skills and experience oflawyers and the extent to which they perceive the importance of their own role in encouraging effective ADR. Disputant Views on the Advantages of ADR Identified by Interviewees (Disputant In-depth Interviews n=49)* ADR Advantages Responses (n=49)* % ofInterviewees Cheaper resolution 30 61. It should also be recognised. It has already been noted that ADR practitioners.3 Massey University Dispute Resolution Diploma 1 1. some processes are seen as more likely to achieve all the benefits claimed for ADRthan others. ADR was not always seen as an alternative to resolution through the courts. however.3 Informal process/relaxed/less stressful 6 12. There was widespread support across stakeholders for the use of ADRtechniques to resolve disputes. lawyers and the judiciary that although disputants may initially feel hesitant and uncomfortable about ADR. Disputant Views on ADR's Contribution to Resolution of their Dispute (Disputant Indepth Interviews n=14) ADR's Contribution to Resolving the Case Interviewees The case settled as a result of ADR 11 ADR did not lead to settlement 2 ADR resolved some issues in the case 1 Total 14 Overall. In relation to the willingness of the disputants. of the sixty disputants involved in in-depth interviews felt able to make some comment about the advantages and disadvantages of ADR.4 1 1.9 * Multiple response.0 1 1. settlement was achieved in eleven of those cases throughADR and for a further case ADR resolved some issues.7 Dispute Resolution paper(s) as part of LLB 1 1.2 Preserves relationships 3 6. Disadvantages of ADR Disputants' Perceptions of ADR Benefits 1.1 6 10.6 1 1.2 Other 5 10.2 More creative solutions 5 10.7 On-goingADR training . Moreover. even the most enthusiastic supporters of ADR . Eleven of those fourteen disputants reported that they would use ADR if ADR was 'suited' to the nature ofthe dispute. ADR practitioners recognise that mediation may encompass a variety of models. As shows.1 2 3.ADR (based on ATTY HIGUIT’S OUTLINE)-CHARMAGNE FERRER’S REVIEWER 9 3 5.2 Faster resolution 27 55.1 * Multiple response. it was also noted by manyADR practitioners. that even within mediation. mediation is: . Almost as many see ADRas a comparatively faster mechanism for dispute resolution (Table 4.4 0 0. This view is consistent with the findingsof the disputant research project. It is clear that ADR is seen as a less costly approach to dispute resolution than having the dispute resolved through a judgment given by the Court. Forty-nine ADR Practitioners' Disadvantages of ADR Views on the Unlike other stakeholders.1 More control 8 16.6). disputants in retrospectoften find the experience very useful.5 4 6. thirty of the sixty disputant interviewees had had some experienceof using ADR to resolve a dispute. As Boulle notes. ADR practitioners tended to see any disadvantagesof ADR for disputants as being related primarily to the particular ADR technique used or the methods by which ADR techniques are implemented. seminars etc 4 5. ranging from developing consensual solutions to risk management or evaluative models for dispute resolution. like lawyers and disputants.4 8 12. see arbitration as a less attractive ADR technique than mediation.ADR practitioners still saw some potential disadvantagesfor disputants in using ADR. A further twenty disputants knew of ADR.workshops. however. In-depth interviews with 60 disputants with civil cases filed with the court system in the 2000-2002 period revealed that only fourteen used ADR to help resolve their dispute.2 AMINZ Associate or Fellow 3 4. Disputants' Views on the Disadvantages of ADR . Even among lawyers who believed the benefits of ADR were such as to justify some mechanism by which the courts could order parties to mediation. Lawyers were directly involved in two of the stakeholders research projects.6 Delaying tactics 35 17. the disputants research does reveal how powerful lawyers' views can be in relation to take-up of ADR. among the lawyers participating in the lawyers' survey around 64. surveyed lawyers tended to be supportive of ADR. [9] Many ADR practitioners believed the full range of potential benefits. Those are whether ADR: delivers reduced costs and increases timeliness delivers a sound and fair outcome. Some concern was expressed that if that type of approach became prevalent. and the expectation that disputants should take responsibility for mutually generating and committing to consensual solutions. there was still a concern that ADR should not be promoted in a manner that compromised litigants' access to justice. In particular there is a view among some lawyers thatADR both delays dispute resolution and increases costs. As shows only a minority of lawyers participating in the lawyers' survey saw significant limitations with ADR techniques. A smaller but still substantial minority of lawyers expressed concerns about mediation's enforceability.7 54 27. with regard to mediation the most substantial minority of lawyers expressed concern that mediation could be used as a delaying tactic. and generates agreements that can be sustained and enforced. However. a diversity of views around the merits and potential problems of ADR. Some of the ADR practitioners were lawyers and some practising lawyers were participants in the ADR practitioner research project as well as the lawyers' research project. compared to 53. What emerged from the lawyer and ADR practitioner research projects as well as the disputant research project was that lawyers have.8 35 17.ADR (based on ATTY HIGUIT’S OUTLINE)-CHARMAGNE FERRER’S REVIEWER 10 "a decision-making process in which the parties are assisted by a third-party. however. Increased cost was seen by lawyers participating in the lawyers' survey as a particular limitation ofarbitration. It is notable that the pattern of those minority concerns differed in relation to arbitration and mediation respectively. the mediator.2 percent of the participant lawyers felt court orders to arbitration were acceptable. or the dominant perception of mediation. that only 22.8 Increased Costs 80 40. reduction in stress and relationship repair. Indeed.9 * Multiple response. It is notable. the mediator attempts to improve the process ofdecision-making and to assist the parties reach an outcome to which each of them can consent". expressed considerable concern at techniques directed primarily at trading-off the probability of success in court. This was perceived as particularly prevalent in the Auckland region and was characterised by some ADR practitioners as a model which allowed disputants to be 'bullied'. Delay was seen as a particular problem associated with mediation. By comparison. a hesitancy to take-up mediation opportunities. Many ADR practitioners. A trading-off approach in mediation was perceived by ADR practitioners to be particularly widespread in disputes around insurance and employment matters. Some disputants assumed that if lawyer-tolawyer informal discussion had failed to resolve the dispute then ADR would simply not be an option. or evaluation of the likelihoodof success in court rather than consensual solution development. Lawyers' Views on the Disadvantagesof ADR For lawyers concerns about ADR focus on three issues. Overall. A small group ofdisputants were explicitly advised by their lawyer not to take-up ADR on the grounds that it was too expensive or ADR would be ineffective. cost-benefit review.7 percent who accepted the notion of the courts ordering parties to mediation. were less likely to be achieved where mediation focused on risk assessment. there would be a backlash against mediation. both those who combine their ADR practice with legal practice and those who do not. Only a minority of the lawyers participating in the lawyers' survey expressed concerns about those issues. With regard to arbitration a substantial minority oflawyers expressed concern that arbitration increased the costs of dispute resolution. and a failure to capture the potential benefits of mediation such as solution flexibility.9 74 37. Limitations of Arbitration (Lawyers Survey) and Mediation Key ADRLimitation Limitations of Arbitration (n=196)* Limitations of Mediation (n=196)* Responses % of Lawyers Responses % of Lawyers Enforceability 17 8. however. It was a model that some found antithetical to what they believed to be the core philosophical values of mediation and the core elements which led to better quality solutions the empowerment of the disputants.4 percent accepted the notion that there might be merit in the court ordering parties to take-up ADR prior to proceeding with a case. perhaps more than anyof the other stakeholder groups. especially those related to increased user satisfaction with outcomes and compliance with ADR resolutions. because court proceedings are adversarial. On the plus side. Litigation (Court Based Adjudication) Litigation is a lawsuit to be decided in court before a judge or jury. identified a series of potential drawbacks with ADR. 1. put a stop to certain activities. litigation ends in a decision that is binding and enforceable. then you must face the crowded court docket and be willing to wait as the lengthy process begins – a lengthy process which keeps disputes broiling and relationships torn apart. This is more conducive to maintaining a positive business relationship between the two parties. preventing some from taking their cases into the courts. Twelve of 49 disputants stated that they saw only advantages and no disadvantages associated with ADR. the length of the process. Those are set out in Table 4. sometimes prohibitively. less confrontational atmosphere. arbitration.html Opposed to the court system. With mediation.com/litigation-vs-alternativedispute-resolution-adr/ .govt. but the outcome is that one person wins and one loses. even the outcome.org/idrsbc/benefits.” Through the courts and litigation you can obtain money. dispute resolution is as fast as the parties want it to be. A prominent New York defense attorney and Criminal Court Judge said in all honesty.ADR (based on ATTY HIGUIT’S OUTLINE)-CHARMAGNE FERRER’S REVIEWER 11 Although ADR was seen by the disputants participating in the in-depth interviews as a less costly pathway than the court system. the result is collaboration between the two parties.ibabc. An additional issue is the fact that the dispute must be able to be translated into legal issues – so some disputes that seem real may not be able to be framed into a legal issue that can be decided in court. the truth is not always the end result.1 Need other party to be willing to come to the table 2 4. Mediation. where the legal system and the judge control every aspect. Disputing parties are able to select their panelist from a list of qualified individuals who are specialized in specific aspects of insurance. In addition. Cooperative Approach: All ADR services take place in a more informal. Compared to the court process. COMPARISON BETWEEN Litigation AND ADR8 At some point in life. 1. BENEFITS OF ALTERNATIVE DISPUTE RESOLUTION7 Cost: One of the largest reasons parties choose to resolve their disputes outside of the courts is cost. Alternative dispute resolution usually costs much less than litigation.4 Other 7 14. and it is appealable. and perhaps several times. selecting what method of ADR they want to follow. and have statutes and documents interpreted. binding decisions are made by judges who may lack expertise in insurance practices. and. specifically.3 ADR practitioner may not have the technical skills required 3 6. and distributive and integrative are two types of bargaining utilized in the ADR processes.1 No right of appeal 2 4. In the court system. However. “I have nothing to do with justice… Justice is not even part of the equation. you will be faced with a dispute that needs to be settled and you must decide just how to reach a solution. Control: The parties control some of the process. allowing smaller financial disputes a financially viable way to be settled.4 Increased costs 9 18. Adjudication is public and has more safeguards than 8 http://general-law. where waits of 2-3 years are normal. Speed: ADR can be scheduled by the parties and the panelist as soon as they are able to meet.6 1.nz/publications/globalpublications/a/alternative-dispute-resolution-generalcivil-cases/4-advantages-and-disadvantages-of-adr 7 http://www.3 Compromise of principles 7 14. and mini trials are all conducted in private and in strict confidentiality. Confidentiality: Disputes resolved in court are public and any judgments awarded are also public. in a mediations case. 6 http://www. litigation can be intimidating and risky for the litigants. a battle between lawyers.knoji. Court based adjudication and ADR are two of the methods used in settling those disputes. Experienced Neutral Panelists: Our panelists are professional mediators and arbitrators with training and expertise in dispute resolution and insurance. ADR is much more flexible.4 Delaying tactic 9 18. Litigation is expensive. a small proportion ofthe 49 interviewees who felt they could comment on the merits of ADR. Even if one can afford litigation.justice.8 Disadvantages of ADR Identified by Interviewees (Disputant In-depth Interviews n=49)* Key Disadvantages Identified Responses % of Interviewees Lackof enforcement 10 20.1 * Multiple response. selecting the panelist for their dispute resolution. Litigation and ADR Contrasted9 A crucial distinction between litigation and ADR is that whilst many legal practitioners engage in ADR processes. The fact is that some forms of ADR like arbitration can prove to be just as intimidating. In other cases such as employment and some other contracts. In house legal experts in large corporate organisations can take part in the entire ADR process without engaging professional lawyers thus cutting costs further. Here the process will be the integrative type – parties are joint problem solvers. but consider the time and the expense of court. Hoping the case can be settled in this manner. 1. builders. the less the other side has. To be successful in distributive negotiating parties must guard their information and try to get as much information from the opponent as possible. there is no legal or professional requirement for either the ADR practitioner or for party representatives at ADR processes to be legally qualified or to be members of legal professions such as the bar or the law society. Secondly. Even when some cooperative bargaining techniques may prove beneficial and are put in place. If your relationship with the opposing party is important to you or it is one that must be maintained. then you will need to decide whether this will be a distributive or integrative negotiation. These processes cover a wide spectrum from binding arbitration normally narrow in scope to reconciliation being a lengthy process focused on mending relationships between people. In these contractual cases arbitration decisions are final and cannot be appealed in court in most instances. states do this for economic reasons as well as to assist in clearing court dockets. integrative. arbitration (binding or non-binding). The process here will be the distributive type – adversarial. or a combination of both. they all utilize either distributive or integrative strategies. arbitration is required for settling disputes. religions and even countries. At times. Distributive: Distributive negotiating has a win or lose outcome – the pie only has so many pieces and the more one side gets. the outcome you desire. rather than destroy. there may be portions of the negotiations that can only be settled by dividing the pie or using distributive techniques.uk/background/contrast.nadr. Alternative Dispute Resolution (ADR) ADR is a series of methods for settling disputes other than court based adjudication. In order to be successful in integrative negotiations all the interests on both sides must be identified and fears must be addressed. If. It is also the practical knowledge and understanding of industry and commerce which assures the parties to ADR processes that the people responsible for settling their dispute or assisting them to reach a settlement 9 http://www. However. civil engineers. 1. Most often this type of bargaining is utilized when there are fixed resources in dispute such as money or property. mariners. even in disputes that involve money. then you can be faced with great expense.php . focusing on interests. These techniques encourage cooperative problem solving which addresses all parties’ needs and interests. races. you might wish to avoid court and work to maintain those relationships. it becomes clear to neutral parties that they must mend the relationship before the money issue can be resolved – this means including integrative bargaining. While there are many ADR processes. Integrative: Integrative bargaining is interest based and looks for a win/win solution. one major consideration in making a decision as to the resolution method is the importance of the relationship between the two parties in the dispute. Negotiators here envision a pie with more unlimited pieces and desire an outcome that will maintain.co. albeit with a thorough understanding of ADR processes and some knowledge and understanding of law. Consider too. Distributive processes are often criticized because they put emphasis on the parties’ differences and lead to destructive actions. and. and the cost involved in each. that ADR can also be expensive and if you chose to go to court when ADR fails. demanding concession. on the other hand. The deciding factors in your decision of whether to go to court or utilize one of the many ADR methods will be the type of dispute. Many of those who engage in ADR practice are first and foremost experts in particular fields such as architects. relationships. Some states require persons to enter into arbitration or mediation before their case can be heard in court. You could utilize mediation. the relationship you have with the opposing party.ADR (based on ATTY HIGUIT’S OUTLINE)-CHARMAGNE FERRER’S REVIEWER 12 many other processes. regardless of the pros and cons of litigation. a reconciliation process. Hardball is often necessary in distributive techniques and relationships become second place or are neglected and ignored. Personal relationships are low on the scale of importance. restorative justice or restitution among others. Methods of negotiation in ADR can be divided into two basic types: distributive. One of the objections to litigation is that it can be intimidating – the powerful against the weak – the rich against the poor. both in terms of time lost through communicating with the professionals and in respect of legal fees and costs. Should you decide on ADR. and working toward a wise decision that is good for all. win at all cost. mediation (nonbinding). it is time to perhaps consider an ADR process. each person deserves their day in court if that is the method they prefer. If the dispute you are involved in has a fixed quantity to work with and the other party is not a friend or someone with whom you must maintain a relationship. court decisions are based on precedent and are more predictable than alternative resolutions which can be formulated by the neutral party. the dispute involves friends or lasting relationships. There are several ADR processes which can be voluntary or ordered by the courts. In litigation most relationships are left unable to be repaired. The goal is to have both sides work on a solution that will be beneficial to both and allow their relationship to remain intact. scientists and social workers. In the final analysis. then you could chose from court ordered adjudication. revealing the evaluation only if the mediation is unsuccessful. making the terms of the outcome public. Where the credibility of key witness is central to a case. The process generally is quicker . There are many variations on this process. LIMITATION OF ADR IN GENERAL Generally ADR are usually faster. and helps explore solutions to promote a mutually acceptable settlement. the neutral may withhold the evaluation from the parties and proceed to mediate the conflict. and issues no decision. Early Neutral Evaluation is an evaluative ADR process initiated early in a case. Any agreement that is reached must satisfy all the disputants. Convening (also called conflict assessment) involves the use of a neutral third party to help assess the causes of the conflict. the dispute is presented to a third-party neutral. arbitrations are private although awards usually are entered as judgments by a court. The mediator makes no judgments about the people or the conflict (unless requested under the evaluative model). who has experience or expertise in the subject matter of the suit. other than a judge. consensus-building. The facilitator helps the parties set ground rules for these discussions. Arbitration is an adjudicatory process in which a person or panel. elicits creative options. and cheaper than litigation. and to consider creative ways for reaching resolution. and confidential. and to help these parties consider the best process (for example. to identify the persons or entities that would be affected by the outcome of the conflict. and keeps the group focused and on track. A summary jury trial involves impaneling an advisory jury to whom the parties make an abbreviated presentation of their cases. Mediation is a process in which a neutral third party (the mediator) assists disputants in reaching a mutually satisfying settlement of their differences. a final judgment is entered on all claims asserted in the case in the amount of the evaluation. any nonbinding process is some form of mediation and that the term “arbitration” is best used only for a binding process. Facilitation or Consensus Building is a process used to help a group of people or parties have constructive discussions about complex or potentially controversial issues. assists in identifying issue. In some cases. often at the direction of the court. The mediator helps the disputants to communicate clearly. 1. This has the effect of giving the parties more confidence in the case evaluation award when made. informal. If one or both parties reject. Facilitation can be used even where parties have not yet agreed to attempt to resolve a conflict.411(A)(2). or a lawsuit) for them to deal with the conflict. Mediation is voluntary. It further assures them that the outcome will not be based purely on legal technicalities but will take into account commercial practicalities and technical details which lawyers may not fully comprehend. To be enforceable in a court the award must be entered as a judgment in a court of competent jurisdiction. the terms mediation and facilitation are often used interchangeably to describe what is known generally elsewhere as mediation. In the first case. The Michigan Court Rules define mediation as a “process in which a neutral third party facilitates communication between parties. The most common ADR procedures are as follows. objective expert will prompt the parties to take a more realistic approach to settling their dispute.” MCR 2. see generally MCR 2. such a trial may provide valuable guidance to counsel about the likely success of their case. then deliberates and renders an advisory verdict.10 ----SEE DISADVANTAGES---- 1. Case Evaluation is an ADR process created by MCR 2. Although case evaluation panels are usually assigned by the office carrying out a circuit court’s case evaluation program. including use of the process to simplify or focus issues. as the case may be. If all of the parties accept.5025 There are narrow grounds for appeal and the parties may agree that no appeal will be permitted. MCL 600. First. takes evidence.404. This deviation from usual procedure should be undertaken after obtaining an appropriate court order. However ADR does not alway guarantee an agreed upon decision and with arbitration the decision is final.answers. SUBJECT OF ADR Typical ADR Processes : A process is any procedure agreed to by the parties and the third party neutral by which the parties will work to resolve their dispute. Although some treatises discuss “non binding” arbitration. in more complex disputes the parties often stipulate to specific panel members who the disputants believe have expertise in the subject matter involved in the dispute. Mini and Summary Jury Trials involve advisory trial proceedings. Id. The convener may also help get the parties ready for participation in a dispute resolution process by providing educating the parties on the nature of the selected process.. meets with the parties and may receive presentations. Second.com/Q/What_are_the_disadvantages_ and_advantages_of_Alternative_dispute_resolution#ixzz204 zUKU00 In Michigan. controls pretrial procedures. The neutral or the jury. to listen carefully. The evaluation is limited to a monetary amount.403 in which a three-person panel hears presentations by litigants and provides a written evaluation of the value of the case. A mediator has no authoritative decisionmaking power. The expectation is that an early evaluation from a knowledgeable. the parties can assert more control in defining the procedure. in which the third party. 10http://wiki. they are also private and informal when also compared to litigation and it gets both parties involved in the settlement process and the decisions are not necessarily final. For further discussion see SCAO’s Taxonomy of Alternative Dispute Resolution Processes. the rule provides for the imposition of sanctions in certain circumstances.ADR (based on ATTY HIGUIT’S OUTLINE)-CHARMAGNE FERRER’S REVIEWER 13 understand their business and their concerns. so it is not well suited to resolving disputes seeking any form of injunctive or other equitable relief. after which the neutral provides the parties with an evaluation of the likelihood of success and likely ranges of damages. promotes effective communication. mediation. Arbitration offers several advantages over adjudication by a court. Figure 19-1 illustrates the spectrum of ADR processes. and renders an award which is the equivalent of a verdict. A third party or conciliator (who may or may not be totally neutral to the interests of the parties) may be used by the parties to help build such relationships. this method allows parties to begin dialogues. and enhance trust. particular care should be taken because these procedures may be very different from the American norm.opm. For this same reason. is that they will be bound by the opinion of the decision maker rather than simply be obligated to "consider" an opinion or recommendation. and building the trust necessary for cooperative problem-solving. The conciliation method is often used in conjunction with other methods such as facilitation or mediation. whether initiated by the parties or ordered by the court. unlike other ADR processes. neutrals in environmental mediations may play a more active role than in more typical tort or contract disputes where the principal dispute is usually money. If arbitration may be subject to international rules. This way. build positive perceptions. A common understanding by the parties in all cases. Since a general objective of conciliation is often to promote openness by the parties (to take the risk to begin negotiations). the neutral is asked to provide an evaluation either as a general advisory number or in the form of an evaluation to be accepted or rejected by the parties. The American Arbitration Association (AAA) is a major arbitration service provider but there are many other service providers. the parties usually have the ability to decide who the individuals are that serve as arbitrators. In some cases.gov/er/adrguide/section1-a. if only one party accepts. the parties may retain a particular arbitrator (often from a list of arbitrators) to decide a number of cases or to serve the parties for a specified length of time (this is common when a panel is involved). the arbitrator’s authority is broader under the Federal Arbitration Act and narrower under the AAA’s procedures. it does not lose any bargaining position by having its acceptance disclosed to the other side. the thirdparty neutral is usually one individual. Some of the techniques used by conciliators include providing for a neutral meeting place. Parties often select a different arbitrator for each new dispute. A conciliator may assist parties by helping to establish communication. environmental mediation may result in numerous sessions conducted over a substantial time period. Where the parties seek evaluative input. including the procedures for their selection. Binding arbitration is a statutorily-mandated feature of Federal labor management agreements. dealing with strong emotions. Cooperative problem-solving is one of the most basic methods of dispute resolution. This process offers the advantage of achieving a final resolution if mediation does not fully settle all matters. the mediation follows the facilitative model but if the parties do not reach an agreement.asp . This method is a key element of labor-management cooperation programs. third-party neutral fact finding. The parties’ agreement to arbitrate may specify discovery obligations as a matter of contract. 11 http://www. clarifying misperceptions. less expensive than litigation. and usually is. Because many environmental disputes deal with not just a specific sum certain but often involve definition of the respective parties’ duties and liabilities after the settlement. the parties cannot withdraw from arbitration once it has been commenced. and facilitated rule or policy development. The parties are free to fashion their own approach to arbitration but. Participants usually include attorneys. Med-Arb is an ADR process in which the parties agree in advance to commence mediation but to continue to binding arbitration of any issues not resolved by mediation. Some agreements may provide for "permanent" arbitrators and some may provide for arbitration panels. get to know each other better. A different neutral generally is used for the arbitration after the mediation is completed. the parties to such agreements are free to negotiate the terms and conditions under which arbitrators are used to resolve disputes. the parties should be very familiar with the Michigan Arbitration Act and the Federal Arbitration Act (discussed in § 19. In some cases. It is usually not reviewable by the courts. Under this method. Conciliation involves building a positive relationship between the parties to a dispute. For example. Cooperative problem-solving may be the procedure of first resort when the parties recognize that a problem or dispute exists and that they may be affected negatively if the matter is not resolved.ADR (based on ATTY HIGUIT’S OUTLINE)-CHARMAGNE FERRER’S REVIEWER 14 than court proceedings and is intended to be. Modes of ADR The most common approaches in Michigan for environmental disputes are mediation (both evaluative and facilitative models). It is most commonly used when a conflict is not highly polarized and prior to the parties forming "hard line" positions. Practitioners should review the arbitrator’s authority to compel discovery and attendance of witnesses under any applicable statute and the procedures under which the arbitration is conducted. reality testing regarding perceptions or misperceptions. Where the facilitative model is employed. In addition. Consistent with statute. ADR Techniques or Methods11 Binding arbitration involves the presentation of a dispute to an impartial or neutral individual (arbitrator) or panel (arbitration panel) for issuance of a binding decision. Unless arranged otherwise. It is a positive effort by the parties to collaborate rather than compete to resolve a dispute. parties should be familiar with these procedures before agreeing to be bound by them. party representatives and experts.19) before agreeing to arbitration. Only if both sides accept does the neutral disclose the parties’ responses. it is not uncommon to use a three-person panel. This informal process usually does not use the services of a third party and typically takes place when the concerned parties agree to resolve a question or issue of mutual concern. Because arbitration is binding. the evaluator receives the acceptance or rejections from each party in confidence. It is not often used in environmental disputes. carrying initial messages between/among the parties. the third party's decision generally has the force of law but does not set a legal precedent. and affirming the parties' abilities to work together. In the latter case. Most two-party environmental disputes utilize mediation at some point. because AAA’s arbitration rules are often incorporated into agreements whether or not the AAA is the arbitration services provider. however. The process separates the person from the problem. This is done to address some parties' concerns that the process. which gives the parties to a dispute an objective perspective on the strengths and weaknesses of their cases. It is particularly useful in those organizations where the panel is non-threatening and has established a reputation for helping parties work through and resolve their own disputes short of using some formal dispute resolution process. mixes and confuses procedural assistance (a characteristic of mediation) with binding decision making (a characteristic of arbitration). or resolve differences over data or facts. Mediated arbitration. The facilitator focuses more on the process involved in resolving a matter. The rationale behind the efficacy of factfinding is the expectation that the opinion of a trusted and impartial neutral will carry weight with the parties. sometimes in writing. The process is used in a number of courts across the country. In cases where such recommendations are not accepted. In some cases. The techniques may also be applied to decision-making meetings where a specific outcome is desired (e. it is used when the parties are seeking an alternative to the expensive and time-consuming process of following discovery procedures." but a facilitator does not typically become as involved in the substantive issues as does a mediator. depending on the authority of the panel and the needs or desires of the parties. These recommendations may be procedural in nature or they may involve specific substantive recommendations. Facilitators focus on procedural assistance and remain impartial to the topics or issues under discussion. District Courts. the third party is authorized by the parties to issue a binding opinion on the cause of the impasse or the remaining issue(s) in dispute. when impasse is reached. The facilitator generally works with all of the meeting's participants at once and provides procedural directions as to how the group can move efficiently through the problem-solving steps of the meeting and arrive at the jointly agreed upon goal. impartial and neutral third party who has no decision-making authority.g." is a variation of the arbitration procedure in which an impartial or neutral third party is authorized by the disputing parties to mediate their dispute until such time as they reach an impasse. or by an individual with the authority to appoint a factfinder in order to determine what the "facts" are in a dispute. brainstorms possibilities and opportunities. med-arb utilizes two outside parties-one to mediate the dispute and another to arbitrate any remaining issues after the mediation process is completed. Factfinding is the use of an impartial expert (or group) selected by the parties. or (4) the parties are in a common predicament and they need or will benefit from a jointly-acceptable outcome. resolution of a conflict or dispute).S. Interest-based problem-solving is often used in collective bargaining between labor and management in place of traditional. it can be effectively applied in many contexts where two or more parties are seeking to reach agreement. (3) the parties have enough trust in each other that they can work together to develop a mutually acceptable solution. However. explores all interests to define issues clearly.. (2) the parties or issues are not extremely polarized. he or she may be authorized to issue either a situation assessment or a specific non-binding procedural or substantive recommendation as to how a dispute might be resolved. an agency. The facilitator may be a member of one of the parties to the dispute or may be an external consultant. including U. position-based bargaining. Mediated arbitration is useful in narrowing issues more quickly than under arbitration alone and helps parties focus their resources on the truly difficult issues involved in a dispute in a more efficient and effective manner. Factfinders generally are not permitted to resolve or decide policy issues. Facilitation involves the use of techniques to improve the flow of information in a meeting between parties to a dispute. but variations of the procedure have been applied to a wide variety of problems in other areas as well.ADR (based on ATTY HIGUIT’S OUTLINE)-CHARMAGNE FERRER’S REVIEWER 15 Dispute panels use one or more neutral or impartial individuals who are available to the parties as a means to clarify misperceptions. Interest-based problem-solving is a technique that creates effective solutions while improving the relationship between the parties. if handled by one third party. Early neutral evaluation uses a neutral or impartial third party to provide a non-binding evaluation. Information analyses and suggestions made by the panel may be used by the parties in other processes such as negotiations. The objective of this intervention is to assist the parties in voluntarily reaching an acceptable resolution of issues . and uses some mutually agreed upon standard to reach a solution. as a technique. The factfinder may be authorized only to investigate or evaluate the matter presented and file a report establishing the facts in the matter. The concern is that parties might be less likely to disclose necessary information for a settlement or are more likely to present extreme arguments during the mediation stage if they know that the same third party will ultimately make a decision on the dispute. commonly known as "med-arb. The panel reviews conflicting data or facts and suggests ways for the parties to reconcile their differences. As part of the process. This method is generally an informal process and the parties have considerable latitude about how the panel is used. Finally. Mediation is the intervention into a dispute or negotiation of an acceptable. It is also used when the parties disagree significantly about the value of their cases and when the top decision makers of one or more of the parties could be better informed about the real strengths and weaknesses of their cases. Under this method. Early neutral evaluation is appropriate when the dispute involves technical or factual issues that lend themselves to expert evaluation. fill in information gaps. Trust in the process is a common theme in successful interest-based problemsolving. In some cases. The method of facilitating is most appropriate when: (1) the intensity of the parties' emotions about the issues in dispute are low to moderate. Factfinding was originally used in the attempt to resolve labor disputes. the parties will usually make informal presentations to the neutral to highlight the parties' cases or positions. The term "facilitator" is often used interchangeably with the term "mediator. the data (or facts) will have been collected and organized in a fashion that will facilitate further negotiations or be available for use in later adversarial procedures. Non-binding arbitration is appropriate for use when some or all of the following characteristics are present in a dispute: (1) the parties are looking for a quick resolution to the dispute. although this is not a prerequisite for an individual to function as an arbitrator. Occasionally. public interest groups. and state and local governments. Such judges play much stronger authoritative roles than mediators. parties do have the flexibility to determine. The parties can use such an advisory opinion to narrow the range of their discussions and to focus in on acceptable settlement options--settlement being the ultimate objective of a minitrial. Some mediators set the stage for bargaining.ADR (based on ATTY HIGUIT’S OUTLINE)-CHARMAGNE FERRER’S REVIEWER 16 in dispute. (2) the parties prefer a third party decision maker. Generally. This is the last step in the process. mediating. Regardless of how directive the mediator is. If the committee reaches consensus on the rule. giving them the ability to select an individual or panel with some expertise and knowledge of the disputed issues. Under the process. Negotiated rulemaking. (2) the parties are looking for a substantial level of control over the resolution of the dispute. rather than offering a specific solution for the parties to consider. The minitrial method is a particularly efficient and cost effective means for settling contract disputes and can be used in other cases where some or all of the following characteristics are present: (1) it is important to get facts and positions before high-level decision makers. Courts that use this method may mandate settlement conferences in certain circumstances. They also provide the parties with possible settlement ranges that could be considered. commonly known as "regneg. and (4) a trial on the merits of the case would be very long and/or complex. A mediator often works with the parties individually. reviews files. the individuals chosen are those known to be impartial. Other mediators are much more involved in forging the details of a resolution. fair. a mediator maysuggest some substantive options as a means of encouraging the parties to expand the range of possible resolutions under consideration. The role of a settlement judge is similar to that of a mediator in that he or she assists the parties procedurally in negotiating an agreement. The opinions issued by the third party in such cases are non-binding. and to have the ability to evaluate and make judgments about data or facts. however. Ombudsmen are individuals who rely on a number of techniques to resolve disputes. and far-reaching regulations--often regulations mandated by statute. or where the parties have been talking and have reached a seemingly insurmountable impasse. Usually. A third party who is often a former judge or individual versed in the relevant law is the individual who oversees a minitrial. objective. The method is used before a proposed rule is published in the Federal Register under the Administrative Procedures Act (APA). the mediator performs the role of catalyst that enables the parties to initiate progress toward their own resolution of issues in dispute. by mutual agreement. since they also provide the parties with specific substantive and legal information about what the disposition of the case might be if it were to go to court. conciliating. like a facilitator. and join them with a representative of the Federal agency in a Federally chartered advisory committee to negotiate the text of the rule. Minitrials involve a structured settlement process in which each side to a dispute presents abbreviated summaries of its cases before the major decision makers for the parties who have authority to settle the dispute." brings together representatives of various interest groups and a Federal agency to negotiate the text of a proposed rule. Settlement conferences involve a pre-trial conference conducted by a settlement judge or referee and attended by representatives for the opposing parties (and sometimes attended by the parties themselves) in order to reach a mutually acceptable settlement of the matter in dispute. when the rule is proposed it is still subject to public review under the APA. That individual is responsible for explaining and maintaining an orderly process of case presentation and usually makes an advisory ruling regarding a settlement range. While reg-neg may result in agreement on composition of a particular rule an agency may wish to propose. Mediation is useful in highly-polarized disputes where the parties have either been unable to initiate a productive dialogue. . then the Federal agency can use this consensus as a basis for its proposed rule. Mediators differ in their degree of directiveness or control while assisting disputing parties. The rationale behind a minitrial is that if the decision makers are fully informed as to the merits of their cases and that of the opposing parties. that an opinion will be binding in a particular case. complex. The method is used in the judicial system and is a common practice in some jurisdictions. Non-binding arbitration involves presenting a dispute to an impartial or neutral individual (arbitrator) or panel (arbitration panel) for issuance of an advisory or non-binding decision. The first step is to set up a well-balanced group representing the regulated public. the parties have input into the selection process. makes primarily procedural suggestions regarding how parties can reach agreement. This method is generally one of the most common quasi-judicial means for resolving disputes and has been used for a long period of time to resolve labor/management and commercial disputes. he or she interviews parties. make minimal procedural suggestions. and intervene in the negotiations only to avoid or overcome a deadlock. when an ombudsman receives a complaint. (3) some or all of the issues are of a technical nature. in caucuses. These techniques include counseling. The summaries contain explicit data about the legal basis and the merits of a case. they will be better prepared to successfully engage in settlement discussions. Federal agency experience is that the process shortens considerably the amount of time and reduces the resources needed to promulgate sensitive. and (3) the parties would like more control over the decision making process than might be possible under more formal adjudication of the dispute. The process generally follows more relaxed rules for discovery and case presentation than might be found in the court or other proceeding and usually the parties agree on specific limited periods of time for presentations and arguments. and factfinding. A mediator. but want to ensure they have a role in selecting the decision maker. to explore acceptable resolution options or to develop proposals that might move the parties closer to resolution. an individual not accepting the proposed solution of the ombudsman is free to pursue a remedy in other forums for dispute resolution. The decision may or may not be binding on the employee and/or the employer. Public international law should not be confused with "private international law". the laws of war or international humanitarian law and international human rights law. Public international law has increased in use and importance vastly over the twentieth century. Typically..g. In its most general sense. INTERNATIONAL ALTERNATIVE DISPUTE RESOLUTION/ PEACEFUL SETTLEMENT OF INTERNATIONAL DISPUTE 1. Partnering is used to improve a variety of working relationships. e. and foster a problem-solving attitude among the group of individuals who must work together throughout a contract's term. depending on the conditions of the particular process. improve communication. The principle objective of the method is to resolve disputes early before they become formal complaints or grievances. which is concerned with the resolution of conflict of laws. international law "consists of rules and principles of general application dealing with the conduct of states and of intergovernmental organizations and with their . It includes these legal fields: treaty law. This generally results in a partnership agreement that includes dispute prevention and resolution procedures. he or she would be able to seek relief in traditional forums for dispute resolution if dissatisfied with the decision under peer review. environmental deterioration on a worldwide scale. Public international law concerns the structure and conduct of sovereign states. which have different foundations and should not be confused. The purpose of the workshop is to develop a team approach to the project. Peer review panels may be standing groups of individuals who are available to address whatever disputes employees might bring to the panel at any given time. law of sea. Partnering in the contract setting typically involves an initial partnering workshop after the contract award and before the work begins. If it is not binding on the employee. The method relies on an agreement in principle to share the risks involved in completing a project and to establish and promote a nurturing environment. rapid and vast increases in international transportation and a boom in global communications. international law also may affect multinational corporations and individuals. primarily between the Federal Government and contractors. questioning. blind selection of a certain number of names from a pool of qualified employees and managers. Peer review is a problem-solving process where an employee takes a dispute to a group or panel of fellow employees and managers for a decision. This is done through the use of team-building activities to help define common goals. INTRODUCTION TO PUBLIC INTERNATIONAL LAW AND PRIVATE INTERNATIONAL LAW Public international law. by seeking to prevent disputes before they occur. To a lesser degree. The field of study combines two main branches: the law of nations (jus gentium) and international agreements and conventions (jus inter gentes). awareness of human rights violations. analogous entities. which governs the relationship between provinces and international entities. ombudsmen do not impose solutions. such as the Holy See. Ombudsmen may be used to handle employee workplace complaints and disputes or complaints and disputes from outside of the place of employment. an impact increasingly evolving beyond domestic legal interpretation and enforcement. Ombudsmen are often able to identify and track systemic problems and suggest ways of dealing with those problems. such as those from customers or clients. the panel is made up of employees and managers who volunteer for this duty and who are trained in listening. international criminal law. due to the increase in global trade.ADR (based on ATTY HIGUIT’S OUTLINE)-CHARMAGNE FERRER’S REVIEWER 17 and makesrecommendations to the disputants. The power of the ombudsman lies in his or her ability to persuade the parties involved to accept his or her recommendations. Generally. This is a facilitated workshop involving the key stakeholders in the project. Typically. and intergovernmental organizations. and problem-solving skills as well as the specific policies and guidelines of the panel. Other panels may be formed on an ad hoc basis through some selection process initiated by the employee. torture. States and individuals who subscribe to this view opine that. as well as with some of their relations with persons. maintain that all civilized nations have certain norms of conduct expected of them. an enemy of all mankind". 1. and politics. The three branches of conflict of laws are • Jurisdiction – whether the forum court has the power to resolve the dispute at hand • Choice of law – the law which is being applied to resolve the dispute • Foreign judgments – the ability to recognize and enforce a judgment from an external forum within the jurisdiction of the adjudicating forum • Conflicts between public international law and national sovereignty Bank. hostis humani generis. many other democracies have differing views on international law. Israel and the United States. but against humanity as a whole. including many European nations. Certain scholars and political leaders feel that these modern developments endanger nation states by taking power away from state governments and ceding it to international bodies such as the U. Several democracies. The rules typically apply when a legal dispute has a "foreign" element such as a contract agreed to by parties located in different countries. he "is become. The term conflict of laws itself originates from situations where the ultimate outcome of a legal dispute depended upon which law applied. . and piracy.org/wiki/International_law 1. argue that international law has evolved to a point where it exists separately from the mere consent of states.[4] and thus subject to prosecution in a fair trial before any fundamentally just tribunal. or conflict of laws. In civil law. eclectic approach. independent authority over a geographic area.) Sovereignty is the quality of having supreme. including the prohibition of genocide. Private international law has no real connection with public international law. particularly regarding human rights standards or their peculiar institutions. JURISDICTION. See also: Monism and dualism in international law The conflict between international law and national sovereignty is subject to vigorous debate and dispute in academia. diplomacy. Private international law. like the pirate and the slave trader before him. whether natural or juridical. and that violation of these universal norms represents a crime. historically. due to their past colonial histories.ADR (based on ATTY HIGUIT’S OUTLINE)-CHARMAGNE FERRER’S REVIEWER 18 relations inter se. and discern a legislative and judicial process to international law that parallels such processes within domestic law. and the World 12 http://en. A number of states place emphasis on the principal of territorial sovereignty. universalistic interpretations of international law. through the exercise of universal jurisdiction. regarding other aspects as arising from treaty or custom. One group of opponents of this point of view. [1] It can be found in a power to rule and make law that rests on a political fact for which no purely legal explanation can be provided. thus seeing states as having free rein over their internal affairs. slavery and the slave trade. recognizing aspects of public international law such as territorial rights as universal. lawyers and legal scholars refer to conflict of laws as private international law. INDEPENDENCE etc. BASIC PRINCIPLES OF INTERNATIONAL LAW (SOVEREIGNTY. and the terms of the UN Charter. Numerous people now view the nation-state as the primary unit of international affairs. disarmament obligations. and believe that only states may choose to voluntarily enter into commitments under international law. Democracies in the developing world. and (2) the law concerning which jurisdiction applies to the issues in the case. has always necessitated a moral imperative on the entity exercising it. take a flexible.12 Conflict of laws (or private international law) is a set of procedural rules that determines which legal system and which jurisdiction's applies to a given dispute. Other states oppose this view. Australia and Canada. wars of aggression. which addresses the questions of (1) which jurisdiction may hear a case. there is a growing trend toward judging a state's domestic actions in the light of international law and standards. Though the European democracies tend to support broad. not only against the individual victims.N. Certainly. but often strongly support international law at the bilateral and multilateral levels. such as a territory. In theoretical terms. This especially occurs when states violate or deviate from the expected standards of conduct adhered to by all civilized nations. and is instead a feature of local law which varies from country to country. in the case of the individual responsible for violation of international law.wikipedia. such as in the United Nations. often insist on non-interference in their internal affairs. including India. from Socrates to Thomas Hobbes. the idea of "sovereignty". and that they have the right to follow their own counsel when it comes to interpretation of their commitments. and the common law courts manner of resolving the conflict between those laws. although the "foreign" element also exists in multi-jurisdictional countries such as the United Kingdom. and viewing certain aspects as not being subjects of public international law at all. and especially regarding the use of force. the United States. [4] Opponents. that states have a logical and moral duty to prosecute an individual responsible for it. or protective. airplane hijacking and genocide as well as torture. 2006. or any other relation with the prosecuting country. Universal jurisdiction risks creating universal tyranny — that of judges. Universal jurisdiction or universality principle is a principle in public international law (as opposed to private international law) whereby states claim 13 http://en. Belgium). in relation to states. passive personality.[3] crimes against humanity. Yerodia Ndombasi. regardless of nationality. Universal jurisdiction14 is a principle of international law that allows states to investigate and prosecute a national of any state found within their borders who is alleged to have committed certain international crimes. reaffirmed the underlying principle of universal jurisdiction as being lawful. as it is too serious to tolerate jurisdictional arbitrage. This principle was reaffirmed by the International Court of Justice in the Case Concerning The Arrest Warrant of 11 April 2000 (Congo v. exists. "Widespread agreement that human rights violations and crimes against humanity must be prosecuted has hindered active consideration of the proper role of international courts. The concept received a great deal of prominence with Belgium's 1993 "law of universal jurisdiction". the principle justifies a unilateral act of wanton disregard of the sovereignty of a nation or the freedom of an individual concomitant to the pursuit of a vendetta or other ulterior motives. certain crimes pose so serious a threat to the international community as a whole. such as Henry Kissinger. territorial. the process could quickly degenerate into politically-driven show trials to attempt to place a quasi-judicial stamp on a state's enemies or opponents. Belgium). as a practical matter. which has been extended to other certain high-ranking state ministers. if a state could not act in the best interests of its own citizens.wikipedia. entitled Case Concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Universal jurisdiction is usually a type of permissive jurisdiction. This principle is premised upon the idea that crimes under international law such as war crimes.ADR (based on ATTY HIGUIT’S OUTLINE)-CHARMAGNE FERRER’S REVIEWER 19 For centuries past. especially during the Age of Enlightenment. According to Amnesty International. however. Universal jurisdiction allows a state to prosecute an individual in its courts where none of the traditional bases for jurisdiction. and application throughout. war crimes.” In exercising universal jurisdiction. and forced disappearances are so serious and reprehensible that any state may prosecute the offender regardless of nationality because they are in essence an “enemy of mankind. although the ICC is not entitled to judge crimes committed before 2002. which was amended in 2003 in order to reduce its scope following a case before the International Court of Justice regarding an arrest warrant issued under the law. in that it requires a State to establish domestic laws authorizing the right to exercise jurisdiction over specified crimes. torture and forced disappearances. Thus. adopted by the United Nations Security Council on April 28. nationality.judicialmonitor. ethnic cleansing and crimes against humanity" and commits the Security Council to action to protect civilians in armed conflict.org/archive_1007/generalprinciples. Congo’s Foreign Minister. A sitting head of state or high-ranking minister is immune from prosecution by another state. country of residence. It has changed in its definition. extrajudicial executions. The state backs its claim on the grounds that the crime committed is considered a crime against all. which any state is authorized to punish.org/wiki/Universal_jurisdiction .[2] The creation of the International Criminal Court (ICC) in 2002 reduced the perceived need to create universal jurisdiction laws. "Reaffirm[ed] the provisions of paragraphs 138 and 139 of the 2005 World Summit Outcome Document regarding the responsibility to protect populations from genocide. extrajudicial killings. concept. since any number of states could set up such universal jurisdiction tribunals. from the time of the Romans through to the present day.html criminal jurisdiction over persons whose alleged crimes were committed outside the boundaries of the prosecuting state. the investigating and prosecuting state represents the interests of the international community as a whole in enforcing international law and ending impunity for atrocities and crimes that shock the consciousness of humanity. argue that universal jurisdiction is a breach on each state's sovereignty: all states being equal in sovereignty.org/wiki/Sovereignty 14 http://www. was found to be immune from prosecution by Belgium. i. codified the basic principles: territorial integrity border inviolability supremacy of the state (rather than the Church) a sovereign is the supreme lawmaking authority within its jurisdiction. The current notion of state sovereignty is often traced back to the Peace of Westphalia (1648). the idea that a state could be sovereign was always connected to its ability to guarantee the best interests of its own citizens.e.15 15 http://en. crimes against humanity. or owed to the entire world community. which. as affirmed by the United Nations Charter. a proponent of universal jurisdiction. [1] According to critics."[5][6] According to Kissinger. with the obvious assumption that the person or state thus disenfranchised is not in a position to bring retaliation to the state applying this principle.[2] The concept of sovereignty has been discussed throughout history.13 1. war crimes. The United Nations Security Council Resolution 1674.wikipedia. as well as the concept of jus cogens – that certain international law obligations are binding on all states and cannot be modified by treaty. it could not be thought of as a “sovereign” state. The ICJ. in a concurring opinion. no place should be a safe haven for those who have committed genocide. The main limitation on the exercise of universal jurisdiction is head of state immunity. The concept of universal jurisdiction is therefore closely linked to the idea that some international norms are erga omnes. In addition part of Article 5 of the European Convention on Human Rights states: In the determination of his civil rights and obligations or of any criminal charge against him. Independence of the Judiciary16 In Brief International law requires that cases presented in international tribunals and cases presented in domestic tribunals where international law is applicable be resolved by tribunals that are independent and that are composed of independent judges. courts would look to a constitution. or are jurisconsults of recognized competence in international law. however. In addition. In private disputes. Thus the Court could apply these provisions of international conventions in ruling that an independent judiciary is a principle of international law. judicial decisions and the teachings of the most highly qualified publicists of the various nations. Moreover. whose function is to decide in accordance with international law such disputes as are submitted to it. Using this definition of law. which enunciates sources of law to be applied by the Court: The Court. or that a professor of international law would enunciate in his or her lectures on international law. how would the ICJ resolve that issue? 16 http://www. One definition of law is that it is simply those principles or rules that a court would enforce or give effect to in resolving a case. international custom. or a regulation adopted by a regulatory body. most countries have some kind of provision in their constitution or in a national statute that . presumes or has as its basis the “rule of law. whether general or particular. as subsidiary means for the determination of rules of law. There are undoubtedly other international conventions that have similar provisions. the grandfather of international courts. courts would look to the “private law” of the parties. shall apply: a. another approach that may be taken in asserting that independent tribunals and independent judges in the dispute resolution and casehearing aspects of international law together form a principle of international law. Nevertheless it is important to highlight this principle and resolve any questions that might be raised as to the validity of it as a principle in international law. because it is law. One other convention. international conventions. the general principles of law recognized by civilized nations. adopted by countries in conjunction with the creation of the United Nations in 1945 (the ICJ is the immediate successor to the Permanent Court of International Justice. created at the time of the establishment of the League of Nations following World War I). a statute. if a question arose in the International Court of Justice. in an attempt to resolve any doubt or question about this principle. is the guarantee of an independent judiciary a principle of international law that would be recognized and applied by an international tribunal? For example. the concept of an independent judiciary in either the federal court system or the court systems of the individual states. the Statute of the International Court of Justice. or texts that espouse. respond by simply stating.html Actual Support for Principle The International Court of Justice might look no further than the statute that created it. establishing rules expressly recognized by the contesting states. c. b. as indicated above. One might. to have any validity those tribunals must necessarily be independent and made up of independent judges. independent and impartial tribunal established by law. With respect to international conventions Article 10 of the Universal Declaration of Human Rights states: Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal. elected regardless of their nationality from among persons of high moral character. as evidence of a general practice accepted as law.ADR (based on ATTY HIGUIT’S OUTLINE)-CHARMAGNE FERRER’S REVIEWER 20 1. There is. who possess the qualifications required in their respective countries for appointment to the highest judicial offices. everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Perhaps the reason is because the necessity of an independent judiciary in a country espousing democracy and the rule of law is selfevident. the ICJ might review Article 38 of the Statute. Article 2 of that Statute provides: The Court shall be composed of a body of independent judges. For example and by analogy. Thus one argument would be simply that the whole idea of international law requires independent tribunals and independent judges.org/archive_0506/generalprinciples. a fair and public hearing by a competent. And given the necessity of tribunals to resolve disputes and hear cases. because it is not usually included in the litany of principles of international law that a student would encounter in studying international law. whether the guarantee of an independent judiciary is a recognized principle of international law. d. guarantees in the determination of any criminal charge or of rights and obligations at a suit at law. law students in the United States studying constitutional law or criminal law would not be confronted by a professor with cases which discuss. the International Covenant on Civil and Political Rights. The Court would then inquire whether any of these “sources” of law require an independent judiciary to resolve international cases or domestic cases with an ingredient of international law. that international law. Thus in cases involving the public or the government. such as a contract or agreement. including recognized tribunals.” In resolving any doubt. article 30 requires that the judges who sit on that court exercise their powers “impartially and conscientiously. in the determination of his rights and obligations and of any criminal charge against him.judicialmonitor.” And the rule of law necessarily incorporates the idea of dispute resolution by peaceful means. subject to the provisions of Article 59. In Theory Asserting that the above is a principle of international law may seem strange. and the further idea of the conduct or hearing of cases according to recognized procedures. Thus three out of the four sources of international law that are authorized for use by the International Court of Justice in its organic statute confirm that an independent judiciary is a principle of international law. Canada. The creation of the PCA is set out under Articles 20 to 29 of the 1899 Hague Convention for the pacific settlement of international disputes. INTERNATIONAL COURT OF JUSTICE The International Court of Justice (French: Cour internationale de Justice. Other Source Documents Finally. The PCA is housed in the Peace Palace in The Hague. She specifically mentioned in the speech the constitutions of Bahrain. which makes it the oldest institution for international dispute resolution. shall. PCA courtroom.ADR (based on ATTY HIGUIT’S OUTLINE)-CHARMAGNE FERRER’S REVIEWER 21 provides for an independent judiciary. Netherlands. state entities. arbitration. However. and the UN General Assembly. in a speech in 2003 before the Arab Judicial Forum. all 193 UN members are automatically parties to the Court's statute. For example.” The International Commission of Jurists. The PCA provides services for the resolution of disputes involving various combinations of states. and private parties. and Australia. Egypt.[11] Non-UN members may also become parties to the Court's statute under the Article 93(2) procedure. and the following items 1. agencies. commonly referred to as the World Court or ICJ) is the primary judicial organ of the United Nations. The PCA is not a “court in the conventional understanding of that term. first of all. The issue of jurisdiction is considered in the two types of ICJ cases: contentious issues and advisory opinions. the concept of an independent judiciary is included in the “teachings of the most highly qualified publicists of the various nations. 2002. pointed out that the constitutions of almost all Arab countries contain provisions for an independent judiciary. which was built specially for the Court in 1913 with an endowment from Andrew Carnegie. HISTORY. as revised at the Round Table Meeting of Chief Justices Held at the Peace Palace.4 specifically spell out what is meant by or contained in that value.”[2] It is a permanent framework available to assist temporary arbitral tribunals or commissions. enquiry. it is entitled to participate in cases before the Court. 1. Former Associate Justice of the U. Sandra Day O’Connor. the continuance of which is likely to endanger the maintenance of international peace and security. Once a state is a party to the Court's statute.The court was established in 1899 as one of the acts of the first Hague Peace Conference. the building also housed the distinctly separate Permanent Court of International Justice. resort to regional agencies or arrangements. intergovernmental organizations. one of the most prestigious bodies of international jurists and lawyers. Value I of that declaration is independence of the judiciary. Other countries where an independent judiciary is part of the fabric of the legal system are the United States. in 2004. 1. conciliation. meeting in The Hague in 2001-2002.1-1. being a party to the statute does not automatically give the Court jurisdiction over disputes involving those parties. And Nauru became a party in 1988. which confirmed the idea of an independent judiciary “in the development and implementation of counter-terrorism measures. including commissions of enquiry and conciliation. issued what is known as the Berlin Declaration on Upholding Human Rights and the Rule of Law in Combating Terrorism. Thus the concept of an independent judiciary is a general principle of law recognized by civilized nations. Supreme Court. At the second Hague Peace Conference. November 25-26. Adopted by the Judicial Group on Strengthening Judicial Integrity. the PCA is not just open to states but also to other parties. or other peaceful means of their own choice. 1. and Jordan. the earlier Convention was revised by the 1907 Convention for the Pacific Settlement of International Disputes. seek a solution by negotiation. but an administrative organization with the object of having permanent and readily available means to serve as the registry for purposes of international arbitration and other related procedures. 1. Switzerland used this procedure in 1948 to become a party. Its main functions are to settle legal disputes submitted to it by states and to provide advisory opinions on legal questions submitted to it by duly authorized international organs. which .” Also a group of chief justices from various countries. Unlike the ICJ. The judges or abitrators that hear cases are officially called "Members" of the Court. RELEVANT ALTERNATIVE DISPUTE SETTLEMENT INSTITUTIONS PERMANENT COURT OF ARBITRATION (HAGUE CONVENTION OF 1907) The Permanent Court of Arbitration (PCA). is an international organization based in The Hague in the Netherlands. The Hague. From 1922 on. mediation. Jurisdiction As stated in Article 93 of the UN Charter. It is based in the Peace Palace in The Hague. before becoming a UN member state. ARTICLE 33 PARAGRAPH 1 OF THE UN CHARTER • The parties to any dispute. issued what is known as the Bangalore Draft Code of Judicial Conduct 2001. judicial settlement.S. which was a result of the first Hague Peace Conference. and a few countries. France. both conferences included negotiations concerning the laws of war and war crimes. for instance. However. The second conference was called at the suggestion of President Theodore Roosevelt in 1904. and matters concerning international and regional trade. which feared a British attempt to stop the growth of the German fleet. Hague Convention of 1907 The Hague Conventions were two international treaties negotiated at international peace conferences at The Hague in the Netherlands: The First Hague Conference in 1899 and the Second Hague Conference in 1907. China. The public at large is usually more familiar with the International Court of Justice than with the Permanent Court of Arbitration. like the Permanent Court of Arbitration. the conference did enlarge the machinery for voluntary arbitration. was generally a failure. the Hague Conventions were among the first formal statements of the laws of war and war crimes in the body of secular international law. 1. was a violation of Hague III (1907). Germany also rejected proposals for compulsory arbitration. and established conventions regulating the collection of debts. which was considered necessary to replace the institution of war. of which twelve were ratified and entered into force: I: The Pacific Settlement of International Disputes II: The Limitation of Employment of Force for Recovery of Contract Debts III: The Opening of Hostilities IV: The Laws and Customs of War on Land includes the Annex on The Qualifications of Belligerents. led by Germany. 1907. A third conference was planned for 1914 and later rescheduled for 1915. The British tried to secure limitation of armaments. Many decisions and related documents are available on the PCA website.ADR (based on ATTY HIGUIT’S OUTLINE)-CHARMAGNE FERRER’S REVIEWER 22 was replaced by the International 1946. but the condition was that the vote should be unanimous. asserting "that a definite political union of the states of the world has been created with the First and Second Conferences. failed to realize success either in 1899 or in 1907. but were defeated by the other powers. The Final Agreement was signed on October 18. including the United States. modifying some parts and adding others. which states that hostilities must not commence without explicit warning Most of the great powers. 1907. However. however. The second conference. and established conventions regulating the collection of debts. rules of war. favored a binding international arbitration. The German international law scholar and neoKantian pacifist Walther Schücking called the assemblies the "international union of Hague conferences". and the rights and obligations of neutrals. to expand upon the original Hague Convention. with few major decisions. and the rights and obligations of neutrals." The various agencies created by the Conferences. the PCA helped in setting up the administrative services of the Iran-United States Claims Tribunal. The Second Peace Conference was held from June 15 to October 18. rules of war. human rights. the meeting of major powers did prefigure later 20thcentury attempts at international cooperation. The cases conducted by the PCA span a wide range of legal issues. led by Germany." A major effort in both the conferences was to create a binding international court for compulsory arbitration to settle international disputes. in 1907. The PCA administers cases arising out of international treaties (including bilateral and multilateral investment treaties). It consisted of thirteen sections. however. The German invasion of Belgium. including disputes over territorial and maritime boundaries. partly because of the closed nature of cases handled by the PCA and to the low number of cases dealt with between 1946 and 1990. Many of the rules laid down at the Hague Conventions were violated in the First World War. Russia. and Persia. The PCA's caseload has. international investment (investor-state arbitrations). This effort. increased since then. sovereignty. and other agreements to arbitrate. Chapter II: Prisoners of War V: The Rights and Duties of Neutral Powers and Persons in Case of War on Land VI: The Status of Enemy Merchant Ships at the Outbreak of Hostilities VII: The Conversion of Merchant Ships into WarShips VIII: The Laying of Automatic Submarine Contact Mines IX: Bombardment by Naval Forces in Time of War X: Adaptation to Maritime War of the Principles of the Geneva Convention XI: Certain Restrictions with Regard to the Exercise of the Right of Capture in Naval War XII: The Creation of an International Prize Court [Not Ratified][5] XIII: The Rights and Duties of Neutral Powers in Naval War Two declarations were signed as well: . and entered into force on January 26. The First Conference was generally a success and was focused on disarmament efforts. vetoed the idea. with an increased focus on naval warfare. Along with disarmament and obligatory arbitration.[1] and saw them as a nucleus of an international federation that was to meet at regular intervals to administer justice and develop international law procedures for the peaceful settlement of disputes. "are agents or organs of the union. but postponed because of the war between Russia and Japan. Britain. Court of Justice in In the early 1980s. 1910. but never took place due to the start of World War I. Along with the Geneva Conventions. The Second Conference failed to create a binding international court for compulsory arbitration but did enlarge the machinery for voluntary arbitration. Hearings are rarely open to the public and sometimes even the decision itself is kept confidential at the request of the parties. ICC's current Chairman is Gerard Worms[1].org/wiki/Hague_Conventions_of_1899_and_1907 History The International Chamber of Commerce was founded in 1919 to serve world business by promoting trade and investment. Korea made a futile effort to take part in the conference. Membership There are two ways to become a member of ICC[5]: 1. Harold McGraw III[2] is ViceChairman and Victor K. The World Council elects ICC’s highest officers.wikipedia. All four men were denied entry17 1. great defender of the compulsory arbitration by creating the idea of an International Court of Arbitration. members have established formal ICC structures called national committees. International Secretariat The ICC International Secretariat. who is appointed by the World Council. A world network of national committees keeps the ICC International Secretariat in Paris informed about national and regional business priorities. It develops and carries out ICC’s work programme. and an alliance of nations to force the arbitration. Sir Ernest Satow and Eyre Crowe. whose contribution was essential for the defense of the principle of legal equality of nations. Fung[3] is Honorary Chairman. In countries where there is no national committee. also travelled to The Hague to argue against the treaty. and many other intergovernmental bodies. King Gojong dispatched Yi Jun. the World Trade Organization. French Minister of Finance Etienne Clémentel. open markets for goods and services. The organization's international secretariat was established in Paris and the ICC's International Court of Arbitration was created in 1923. [7] The British delegation included the 11th Lord Reay (Donald James Mackay). including the Chairman and the Vice-Chairman. 17 http://en. 2.[citation needed] Its hundreds of thousands of member companies in over 130 countries have interests spanning every sector of private enterprise. the Executive Board oversees the establishment of ICC’s strategic priorities and the implementation of its policies.They play an important role in ICC section.ADR (based on ATTY HIGUIT’S OUTLINE)-CHARMAGNE FERRER’S REVIEWER 23 Declaration I: extending Declaration II from the 1899 Conference to other types of aircraft[6] Declaration II: on the obligatory arbitration The Brazilian delegation was led by the statesman Ruy Barbosa.000 experts drawn from ICC’s member companies feed their knowledge and experience into crafting the ICC stance on specific business issues. An American missionary. consisting of up to 30 business leaders and exofficio members. most representative business organization in the world. to argue that Eulsa Treaty was unjust and ask for help from the international society to recover Korea’s diplomatic sovereignty. INTERNATIONAL COURT OF ARBITRATION (INTERNATIONAL CHAMBER OF COMMERCE) The International Court of Arbitration is an institution for the resolution of international commercial disputes. Homer Hulbert. ICC's first Chairman was 20th c. The International Court of Arbitration is part of the International Chamber of Commerce. There are an increasing number of cases being brought before the International Court of Arbitration. By direct membership with the ICC International Secretariat when a national committee/group has not yet been established in your country/territory. It is elected by the World Council on the recommendation of the Chairmanship. ViceChairman and the Honorary Chairman (the immediate past Chairman) provide the organization with highlevel world leadership. companies and organizations such as chambers of . The UN. More than 2. Through affiliation with an ICC national committee or group. Yi Sang-Seol and Yi Wi-Jong as envoys to the second peace conference. are kept in touch with the views of international business through ICC. consisting of representatives of national committees. is the operational arm of ICC. The International Secretariat is led by the Secretary General.The Uruguayan delegation was led by José Batlle y Ordóñez. Meeting three times a year. The Chairman. Jean-Guy Carrier [4] was elected Secretary General of ICC by the ICC World Council. Governing bodies World Council ICC' s supreme governing body is the World Council. The International Chamber of Commerce (ICC) is the largest. both international and regional. National Committees In 90 of the world’s nations. based in Paris. each of whom serves a two-year term. Executive Board Strategic direction for ICC is provided by its Executive Board. In January 2011. in an incident known as the Hague Secret Emissary Affair. The Russian delegation was led by Fyodor Martens. feeding business views into intergovernmental organizations on issues that directly affect business operations. There have been more than 500 cases a year handled by the International Court of Arbitration since 1999. and the free flow of capital. On behalf of the Executive Board. Task forces are constituted under the various commissions for a limited period to undertake specific projects and report back to their parent commission. [28] Over the past decade. the World Bank as an institution and the President of the Bank in his personal capacity have assisted in mediation or conciliation of investment disputes between governments and private foreign investors. rules and standards are prepared by specialized working bodies. Dispute boards are independent bodies designed to help resolve disagreements arising during the course of a contract. As of May 2011.C. was established in 1966 pursuant to the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (the ICSID Convention or Washington Convention). most of which refer present and future investment disputes to the ICSID. Latin and Central America. and then approved by the Executive Board. ICSID has an Administrative Council.[1][2] Establishment On a number of occasions in the past. such as negotiation or a mini-trial. with the proliferation of bilateral investment treaties (BITs). During the first decade of the 21st century. an institution of the World Bank Group based in Washington. . and a Secretariat. ICSID had registered 263 cases. Officers are appointed by the Chairman and Secretary General in consultation with NCs. Normal procedure requires policy statements first to be adopted by a commission. ICSID was established under the Convention on the Settlement of Investment Disputes between States and Nationals of Other States which came into force on October 14. But the Bank's overriding consideration in creating ICSID was the belief that an institution specially designed to facilitate the settlement of investment disputes between governments and foreign investors could help to promote increased flows of international investment. chaired by the World Bank's President. the caseload of the ICSID substantially increased. The Administrative Council is chaired by the World Bank's President and consists of one representative of each State which has ratified the Convention. United States. the Court's workload has considerably expanded. in consultation with national committees. Some task forces may include representatives of more than one commission. 157 countries had signed the ICSID Convention. The Court's membership has also grown and now covers 86 countries. Each national committee (NC) or group may appoint delegates to represent it at meetings. As of 30 March 2007. With representatives in North America. • Policy practices and business ICC policies. 1. the ICC Court has significantly increased its training activities on all continents and in all major languages used in international trade. ICC Dispute Resolution Services exist in many forms: Amicable dispute resolution offers a framework for the settlement of disputes with the assistance of a neutral. before they can be regarded as official and public ICC positions. It reviews the financial implications of ICC activities and supervises the flow of revenues and expenses of the organization. The creation of the International Centre for Settlement of Investment Disputes (ICSID) in 1966 was in part intended to relieve the President and the staff of the burden of becoming involved in such disputes. incorporating ICC banking rules. Finance Committee The Finance Committee advises the Executive Board on all financial matters. 1966. Africa and the Middle East and Asia. ICSID has an Administrative Council and a Secretariat. Meetings of commissions are normally held twice a year. most resulting from Argentine government actions precipitated by Argentina's economic crisis. It provides facilities for the conciliation and arbitration of investment disputes between member countries and individual investors. INTERNATIONAL CENTER FOR SETTLEMENT OF INVESTMENT DISPUTES (ICSID) (CONVENTION ON THE SETTLEMENT OF INESTMENT DISPUTE BETWEEN STATES AND NATIONALS OF OTHER STATES) The International Centre for Settlement of Investment Disputes (ICSID). Dispute Resolution Services ICC International Court of Arbitration has received 15. it prepares the budget and regularly reports to the board.000 cases since its inception in 1923. more than 30 of which were pending against Argentina. Annual meetings of the Council are held in conjunction with the joint Bank/Fund annual meetings.. Commissions examine major policy issues of interest to world business. Expertise is a way of finding the right person to make an independent assessment on any subject relevant to business operations. Parties choose the settlement technique. D. ICSID caseload may be reduced by announcements from Nicaragua and Venezuela that they intend to withdraw from the ICSID.ADR (based on ATTY HIGUIT’S OUTLINE)-CHARMAGNE FERRER’S REVIEWER 24 commerce and professional associations can become direct members. collections and demand guarantees. DOCDEX provides expert decisions to resolve disputes related to documentary credits. once the parties have consented to arbitration under the ICSID Convention. Provisions on ICSID arbitration are commonly found in investment contracts between governments of member countries and investors from other member countries. Dominican Republic. it has close links with the World Bank. non-institutional) arbitration proceedings. Antigua and Barbuda. Russia. South Africa. Laos. whether or not parties to the dispute. Vietnam. the Singapore International Arbitration Centre. Brazil. Tuvalu. Signed. Other possible locations include the Permanent Court of Arbitration at The Hague.[4] Other non-members are Andorra. Iran. ICSID proceedings do not necessarily take place in Washington. all ICSID Contracting States. However. and the rest of states with limited recognition.org/wiki/International_Centre_for_Settlement_ of_Investment_Disputes ." The Additional Facility Rules further allow ICSID to administer a type of proceedings not provided for in the Convention. the Centre has published a semi-annual law journal entitled ICSID Review: Foreign Investment Law Journal.18 1. Unless a government makes a contrary designation. ICSID provides facilities for the conciliation and arbitration of disputes between member countries and investors who qualify as nationals of other member countries. Eritrea. Marshall Islands. It plays a vital role in world development. Monaco. Namibia. Iraq. Cook Islands. Vanuatu.ADR (based on ATTY HIGUIT’S OUTLINE)-CHARMAGNE FERRER’S REVIEWER 25 ICSID is an autonomous international organization. Liechtenstein. Bhutan. Ethiopia. although the costs of individual proceedings are borne by the parties involved. Djibouti. the Australian Centre for International Commercial Arbitration at Melbourne. Canada.C. However. Kyrgyzstan.e. Libya. Additional Facility conciliation and arbitration are also available for cases where the dispute is not an investment dispute provided it relates to a transaction which has "features that distinguishes it from an ordinary commercial transaction.. North Korea. seeing the increasing importance of international commercial law. Sao Tome and Principe. Niue. San Marino. Since World War II international trade has grown extensively. Thailand Former members are Bolivia. the Energy Charter Treaty. Poland. In addition to these activities. Kiribati. namely fact-finding proceedings to which any State and foreign national may have recourse if they wish to institute an inquiry "to examine and report on facts. Equatorial Guinea. particularly through the integration of world markets. The expenses of the ICSID Secretariat are financed out of the Bank's budget. Guinea-Bissau. These include conciliation and arbitration proceedings where either the State party or the home State of the foreign national is not a member of ICSID.[5] Moreover. UNITED NATIONS COMMISSION FOR INTERNATIONAL TRADE LAW (UNICITRAL MODEL LAW ON INTRNATIONAL COMMERCIAL ARBITRATION-1985) International commercial law is the body of law that governs international sale transactions.[3] Membership Members of the ICSID are 156 of the UN members and Kosovo. Since April 1986. Besides this original role. Palau. Cuba. its Governor for the Bank sits ex officio on ICSID's Administrative Council. have Belize. the Centre has since 1978 had a set of Additional Facility Rules authorizing the ICSID Secretariat to administer certain types of proceedings between States and foreign nationals which fall outside the scope of the Convention. Angola. This is most commonly done in the context of arrangements for arbitration under the Arbitration Rules of the United Nations Commission on International Trade Law (UNCITRAL). the Cartagena Free Trade Agreement and the Colonia Investment Protocol of Mercosur). Activities Pursuant to the Convention.wikipedia. are required by the Convention to recognize and enforce ICSID arbitral awards. Dominica. Tajikistan. Myanmar. the Australian Commercial Disputes Centre at Sydney. Montenegro. All of ICSID's members are also members of the Bank. Ecuador. which are specially designed for ad hoc proceedings. ICSID also carries on advisory and research activities. and soon to be Venezuela. and collaborates with other World Bank Group units. but not ratified. Advance consents by governments to submit investment disputes to ICSID arbitration can also be found in about twenty investment laws and in over 900 bilateral investment treaties. the Regional Arbitration Centres of the Asian-African Legal Consultative Committee at Cairo and Kuala Lumpur. Lex mercatoria refers to that part of international commercial law which is unwritten. Mexico. Recourse to ICSID conciliation and arbitration is entirely voluntary. Maldives. D. publishing Investment Laws of the World and of Investment Treaties. India. Vatican City. A transaction will qualify to be international if elements of more than one country are involved. Arbitration under the auspices of ICSID is similarly one of the main mechanisms for the settlement of investment disputes under four recent multilateral trade and investment treaties (the North American Free Trade Agreement. neither can unilaterally withdraw its consent. the GCC Commercial Arbitration Centre at Bahrain and the Frankfurt International Arbitration Center of German Institution of Arbitration (DIS) and the Frankfurt Chamber of Commerce and Industry. Suriname. including 18http://en." A third activity of ICSID in the field of the settlement of disputes has consisted in the Secretary-General of ICSID accepting to act as the appointing authority of arbitrators for ad hoc (i. Nauru. as well as different geographic regions. UNCITRAL conventions: the Convention on the Limitation Period in the International Sale of Goods (1974) (text) the United Nations Convention on the Carriage of Goods by Sea (1978) the United Nations Convention on Contracts for the International Sale of Goods (1980) the United Nations Convention on International Bills of Exchange and International Promissory Notes (1988) the United Nations Convention on the Liability of Operators of Transport Terminals in International Trade (1991) the United Nations Convention on Independent Guarantees and Stand-by Letters of Credit (1995) the United Nations Convention on the Assignment of Receivables in International Trade (2001) the United Nations Convention on the Use of Electronic Communications in International Contracts (2005) the United Nations Convention on Contracts for the International Carriage of Goods Wholly or Partly by Sea (2008) • Model laws A model law is a legislative text that is recommended to States for enactment as part of their national law. Non-member States and interested international and regional organizations are also invited and can actively contribute to the work since decisions are taken by consensus. The second level is the intergovernmental working groups (which is developing the topics on UNCITRAL's work program. Promoting wider participation in existing international conventions and wider acceptance of existing model and uniform laws. Member states of UNCITRAL are representing different legal traditions and levels of economic development. Preparing or promoting the adoption of new international conventions. and was expanded to 36 in 1973. with the organizations operating in this field. Maintaining liaison with other UN organs and specialized agencies concerned with international trade. 8 Eastern European states. customary rules of evidence and procedure. provisions. and again to 60 in 2002. model laws and uniform laws and promoting the codification and wider acceptance of international trade terms.ADR (based on ATTY HIGUIT’S OUTLINE)-CHARMAGNE FERRER’S REVIEWER 26 customary commercial law. and general principles of commercial law The United Nations Commission on International Trade Law (UNCITRAL) was established by the United Nations General Assembly by its Resolution 2205 (XXI) of 17 December 1966 "to promote the progressive harmonization and unification of international trade law". Establishing and maintaining a close collaboration with the UN Conference on Trade and development. where appropriate. and 14 Western European states. not by vote. The entry into force of a convention is usually dependent upon the deposit of a minimum number of instruments of ratification. Membership is structured so as to be representative of the world's various geographic regions and its principal economic and legal systems. Draft texts completed by these working groups are submitted to UNCITRAL for finalization and adoption at its annual session. are: The methods of work are organized at three levels. customs and practice. Collecting and disseminating information on national legislation and modern legal developments. 14 Asian states. 10 Latin American and Caribbean states. which holds an annual plenary session. States includes 14 African states. As of 21 June 2010. The International Trade Law Division of the United Nations Office of Legal Affairs provides substantive secretariat services to UNCITRAL. A convention is designed to unify law by establishing binding legal obligations To become a party to a convention. and the years when their memberships expire. which assists the other two in the preparation and conduct of their work. UNCITRAL carries out its work at annual sessions held alternately in New York City and Vienna. • Conventions The Convention is an agreement among participating states establishing obligations binding upon those States that ratify or accede to it. Members of the commission are elected for terms of six years. in collaboration. national governments began to realize the need for a global set of standards and rules to harmonize national and regional regulations. The first level is UNCITRAL itself (The Commission). in the field of the law of international trade. such as conducting research and preparing studies and drafts. History When world trade began to expand dramatically in the 1960s. The Commission member States are elected by the General Assembly. Uncitral is: Coordinating the work of organizations active and encouraging cooperation among them. including case law. which meet once or twice per year. the members of UNCITRAL. Membership UNCITRAL's original membership comprised 29 states. which until then governed international trade. Model laws are generally finalized and adapted by . States are required formally to deposit a binding instrument of ratification or accession with the depositary. the terms of half the members expiring every three years. Promoting ways and means of ensuring a uniform interpretation and application of international conventions and uniform laws in the field of the law of international trade. This is the third level. Texts designed to simplify trade transactions and reduce associated costs are developed by working groups comprising all member States of UNCITRAL. pre-released. while conventions requires the convening of a diplomatic conference.ADR (based on ATTY HIGUIT’S OUTLINE)-CHARMAGNE FERRER’S REVIEWER 27 UNCITRAL. to develop an integrated. 1980) and the UNCITRAL Model Law on International Commercial Arbitration (1985). 1. Being desirous of contributing to these objectives by entering into reciprocal and mutually advantageous arrangements directed to the substantial reduction of tariffs and other barriers to trade and to the elimination of discriminatory treatment in international trade relations. Article II back to top Scope of the WTO 1. The agreements and associated legal instruments included in Annexes 1. . 2010 UNCITRAL Conciliation Rules (1980) UNCITRAL Arbitration Rules (1982) UNCITRAL Notes on Organizing Arbitral Proceedings (1996) • CLOUT (Case UNCITRAL Texts) Law on The Case Law on UNCITRAL Texts system is a collection of court decisions and arbitral awards interpreting UNCITRAL texts. 2. The WTO shall provide the common institutional framework for the conduct of trade relations among its Members in matters related to the agreements and associated legal instruments included in the Annexes to this Agreement. The General Agreement on Tariffs and Trade 1994 as specified in Annex 1A (hereinafter referred to as “GATT 1994”) is legally distinct from the General Agreement on Tariffs and Trade. and especially the least developed among them. 2 and 3 (hereinafter referred to as “Multilateral Trade Agreements”) are integral parts of this Agreement. secure a share in the growth in international trade commensurate with the needs of their economic development. dated 30 October 1947. The Plurilateral Trade Agreements do not create either obligations or rights for Members that have not accepted them. the results of past trade liberalization efforts. Determined to preserve the basic principles and to further the objectives underlying this multilateral trading system. as subsequently rectified. therefore. Recognizing that their relations in the field of trade and economic endeavour should be conducted with a view to raising standards of living. Construction and Services (1994) UNCITRAL Model Law on Electronic Commerce (1996) Model Law on Cross-border Insolvency (1997) UNCITRAL Model Law on Electronic Signatures (2001) UNCITRAL Model Law on International Commercial Conciliation (2002) Model Legislative Provisions on Privately Financed Infrastructure Projects (2003) UNCITRAL also drafted the: UNCITRAL Arbitration Rules (1976) (text)—revised rules will be effective August 15. annexed to the Final Act Adopted at the Conclusion of the Second Session of the Preparatory Committee of the United Nations Conference on Trade and Employment. Agree as follows: Article I back to top Establishment of the Organization The World Trade Organization (hereinafter referred to as “the WTO”) is hereby established. CLOUT includes case abstracts in the six United Nations languages on the United Nations Convention on Contracts for the International Sale of Goods (CISG) (Vienna. July 12. and expanding the production of and trade in goods and services. Recognizing further that there is need for positive efforts designed to ensure that developing countries. 4. Resolved. ensuring full employment and a large and steadily growing volume of real income and effective demand. binding on all Members. 2010. and are binding on those Members. more viable and durable multilateral trading system encompassing the General Agreement on Tariffs and Trade. amended or modified (hereinafter referred to as “GATT 1947”). at its annual session. and all of the results of the Uruguay Round of Multilateral Trade Negotiations. UNCITRAL Model Law on International Commercial Arbitration (1985) (text) Model Law on International Credit Transfers (1992) UNCITRAL Model Law on Procurement of Goods. seeking both to protect and preserve the environment and to enhance the means for doing so in a manner consistent with their respective needs and concerns at different levels of economic development. WORLD TRADE ORGANIZATION (MARRAKESH AGREEMENT) (DISPUTE SETTLEMENT UNDERSTANDING) The Parties to this Agreement. while allowing for the optimal use of the world’s resources in accordance with the objective of sustainable development. 3. The agreements and associated legal instruments included in Annex 4 (hereinafter referred to as “Plurilateral Trade Agreements”) are also part of this Agreement for those Members that have accepted them. The General Council shall convene as appropriate to discharge the responsibilities of the Trade Policy Review Body provided for in the TPRM. The WTO shall administer the Understanding on Rules and Procedures Governing the Settlement of Disputes (hereinafter referred to as the “Dispute Settlement Understanding” or “DSU”) in Annex 2 to this Agreement. a Council for Trade in Services and a Council for TradeRelated Aspects of Intellectual Property Rights (hereinafter referred to as the “Council for TRIPS”). a Committee on Balance-of-Payments Restrictions and a Committee on Budget. as appropriate. The Council for Trade in Goods. In the intervals between meetings of the Ministerial Conference. 4. With a view to achieving greater coherence in global economic policy-making. which shall operate under the general guidance of the General Council. There shall be a Council for Trade in Goods. The bodies provided for under the Plurilateral Trade Agreements shall carry out the functions assigned to them under those Agreements and shall operate within the institutional framework of the WTO. Membership in these Councils shall be open to representatives of all Members. Membership in these Committees shall be open to representatives of all Members. in accordance with the specific requirements for decisionmaking in this Agreement and in the relevant Multilateral Trade Agreement. the WTO shall cooperate. The Council for TRIPS shall oversee the functioning of the Agreement on Trade-Related Aspects of Intellectual Property Rights (hereinafter referred to as the “Agreement on TRIPS”). There shall be a Ministerial Conference composed of representatives of all the Members. and shall also provide the framework for the implementation. 4. The General Council shall also carry out the functions assigned to it by this Agreement. The WTO shall provide the forum for negotiations among its Members concerning their multilateral trade relations in matters dealt with under the agreements in the Annexes to this Agreement. which shall meet as appropriate. 6. The Ministerial Conference shall establish a Committee on Trade and Development. The General Council shall convene as appropriate to discharge the responsibilities of the Dispute Settlement Body provided for in the Dispute Settlement Understanding. The WTO shall facilitate the implementation. Finance and Administration. the Committee on Trade and Development shall periodically review the special provisions in the Multilateral Trade Agreements in favour of the least-developed country Members and report to the General Council for appropriate action. 2. 2. The General Council shall establish its rules of procedure and approve the rules of procedure for the Committees provided for in paragraph 7. if so requested by a Member. 8. As part of its functions. 3. The WTO shall administer the Trade Policy Review Mechanism (hereinafter referred to as the “TPRM”) provided for in Annex 3 to this Agreement. 5. These bodies shall keep the General Council informed of their activities on a regular basis. 3. the Council for Trade in Services and the Council for TRIPS shall establish subsidiary bodies as required. The WTO may also provide a forum for further negotiations among its Members concerning their multilateral trade relations. The Ministerial Conference shall carry out the functions of the WTO and take actions necessary to this effect. and further the objectives. These Councils shall carry out the functions assigned to them by their respective agreements and by the General Council. and may establish such additional Committees with such functions as it may deem appropriate. which shall carry out the functions assigned to them by this Agreement and by the Multilateral Trade Agreements. with the International Monetary Fund and with the International Bank for Reconstruction and Development and its affiliated agencies. The Trade Policy Review Body may have its own chairman and shall establish such rules of procedure as it deems necessary for the fulfilment of those responsibilities. administration and operation of the Plurilateral Trade Agreements. administration and operation. its functions shall be conducted by the General Council. These Councils shall meet as necessary to carry out their functions. They shall establish their respective rules of procedure subject to the approval of the General Council. The Council for Trade in Services shall oversee the functioning of the General Agreement on Trade in Services (hereinafter referred to as “GATS”). and a framework for the implementation of the results of such negotiations. The Dispute Settlement Body may have its own chairman and shall establish such rules of procedure as it deems necessary for the fulfilment of those responsibilities.ADR (based on ATTY HIGUIT’S OUTLINE)-CHARMAGNE FERRER’S REVIEWER 28 Article III back to top Functions of the WTO 1. These subsidiary bodies shall establish their respective rules of procedure subject to the approval of their respective Councils. which shall meet at least once every two years. and any additional functions assigned to them by the General Council. of this Agreement and of the Multilateral Trade Agreements. . Article IV back to top Structure of the WTO 1. 7. There shall be a General Council composed of representatives of all the Members. 5. The Ministerial Conference shall have the authority to take decisions on all matters under any of the Multilateral Trade Agreements. as may be decided by the Ministerial Conference. The Council for Trade in Goods shall oversee the functioning of the Multilateral Trade Agreements in Annex 1A. 2. The WTO may conclude a headquarters agreement. Article VIII back to top Status of the WTO 1.ADR (based on ATTY HIGUIT’S OUTLINE)-CHARMAGNE FERRER’S REVIEWER 29 financial regulations which shall include provisions setting out: Article V back to top Relations with Other Organizations 1. The responsibilities of the Director-General and of the staff of the Secretariat shall be exclusively international in character. and (b) the measures to be taken in respect of Members in arrears. The WTO shall have legal personality. Finance and Administration the annual budget estimate and financial statement of the WTO. 2. approved by the General Assembly of the United Nations on 21 November 1947. its officials. There shall be a Secretariat of the WTO (hereinafter referred to as “the Secretariat”) headed by a Director-General. 3. They shall refrain from any action which might adversely reflect on their position as international officials. 4. 4. The privileges and immunities to be accorded by a Member to the WTO. and shall be accorded by each of its Members such legal capacity as may be necessary for the exercise of its functions. and the representatives of its Members shall be similar to the privileges and immunities stipulated in the Convention on the Privileges and Immunities of the Specialized Agencies. 2. At meetings of the Ministerial Conference and the General Council. the matter at issue shall be decided by voting. 2. The Director-General shall present to the Committee on Budget. where a decision cannot be arrived at by consensus. The General Council shall make appropriate arrangements for effective cooperation with other intergovernmental organizations that have responsibilities related to those of the WTO. The officials of the WTO and the representatives of the Members shall similarly be accorded by each of its Members such privileges and immunities as are necessary for the independent exercise of their functions in connection with the WTO. 4. Finance and Administration shall propose to the General Council (a) the scale of contributions apportioning the expenses of the WTO among its Members. The Committee on Budget. Article IX back to top Decision-Making 1. The Committee on Budget. 3. The WTO shall be accorded by each of its Members such privileges and immunities as are necessary for the exercise of its functions. The financial regulations shall be based. The General Council may make appropriate arrangements for consultation and cooperation with non-governmental organizations concerned with matters related to those of the WTO. Each Member shall promptly contribute to the WTO its share in the expenses of the WTO in accordance with the financial regulations adopted by the General Council. Article VII back to top Budget and Contributions 1. The Director-General shall appoint the members of the staff of the Secretariat and determine their duties and conditions of service in accordance with regulations adopted by the Ministerial Conference. 5. In the discharge of their duties. 3. conditions of service and term of office of the Director-General. each Member of the WTO shall have one vote. The Members of the WTO shall respect the international character of the responsibilities of the Director-General and of the staff of the Secretariat and shall not seek to influence them in the discharge of their duties. The WTO shall continue the practice of decisionmaking by consensus followed under GATT 1947(1). the Director-General and the staff of the Secretariat shall not seek or accept instructions from any government or any other authority external to the WTO. on the regulations and practices of GATT 1947. duties. Except as otherwise provided. The annual budget estimate shall be subject to approval by the General Council. The General Council shall adopt the financial regulations and the annual budget estimate by a twothirds majority comprising more than half of the Members of the WTO. Finance and Administration shall review the annual budget estimate and the financial statement presented by the Director-General and make recommendations thereon to the General Council. Where the European . The Ministerial Conference shall appoint the Director-General and adopt regulations setting out the powers. as far as practicable. Article VI back to top The Secretariat 1. which shall not exceed 90 days. the Ministerial Conference may decide to waive an obligation imposed on a Member by this Agreement or any of the Multilateral Trade Agreements. unless otherwise provided in this Agreement or in the relevant Multilateral Trade Agreement(3). shall be governed by the provisions of that Agreement. they shall exercise their authority on the basis of a recommendation by the Council overseeing the functioning of that Agreement. Any Member of the WTO may initiate a proposal to amend the provisions of this Agreement or the Multilateral Trade Agreements in Annex 1 by submitting such proposal to the Ministerial Conference. and the date on which the waiver shall terminate. Decisions under a Plurilateral Trade Agreement. for consideration during a time-period which shall not exceed 90 days. the relevant Council shall submit a report to the Ministerial Conference. any decision to grant a waiver shall be taken by three fourths4 of the Members. (b) A request for a waiver concerning the Multilateral Trade Agreements in Annexes 1A or 1B or 1C and their annexes shall be submitted initially to the Council for Trade in Goods. including any decisions on interpretations and waivers. Decisions of the Ministerial Conference and the General Council shall be taken by a majority of the votes cast. Articles I and II of GATT 1994. The Ministerial Conference. At the end of the time-period. Article II:1 of GATS. 3. provided that any such decision shall be taken by three fourths (4) of the Members unless otherwise provided for in this paragraph. Amendments to the provisions of this Article and to the provisions of the following Articles shall take effect only upon acceptance by all Members: Article IX of this Agreement. unless the Ministerial Conference decides by a three-fourths majority of the Members that the provisions of paragraph 4 shall apply. 5 and 6. Except as provided in paragraphs 2. Any waiver granted for a period of more than one year shall be reviewed by the Ministerial Conference not later than one year after it is granted. In the case of an interpretation of a Multilateral Trade Agreement in Annex 1. 5 or 6 apply. other than those listed in paragraphs 2 and 6. Unless the provisions of paragraphs 2. the Ministerial Conference shall decide by a two-thirds majority of the Members whether to submit the proposed amendment to the Members for acceptance. The Ministerial Conference may decide by a three-fourths majority of the Members that any amendment made effective under this paragraph is of such a nature that any Member which has not accepted it within a period specified by the Ministerial Conference in each case shall be free to withdraw from the WTO or to remain a Member with the consent of the Ministerial Conference. for a period of 90 days after the proposal has been tabled formally at the Ministerial Conference any decision by the Ministerial Conference to submit the proposed amendment to the Members for acceptance shall be taken by consensus. on the basis of the annual review. 4. Unless the Ministerial Conference decides on a longer period. This paragraph shall not be used in a manner that would undermine the amendment provisions in Article X. that decision shall specify whether the provisions of paragraphs 3 or 4 shall apply.ADR (based on ATTY HIGUIT’S OUTLINE)-CHARMAGNE FERRER’S REVIEWER 30 Communities exercise their right to vote. If consensus is not reached at a meeting of the Ministerial Conference within the established period. The Ministerial Conference and the General Council shall have the exclusive authority to adopt interpretations of this Agreement and of the Multilateral Trade Agreements. 3. If consensus is reached. 5. Article X back to top Amendments 1. of a nature that would alter the rights and obligations of the Members. or of the Multilateral Trade Agreements in Annexes 1A and 1C. 2. The Councils listed in paragraph 5 of Article IV may also submit to the Ministerial Conference proposals to amend the provisions of the corresponding Multilateral Trade Agreements in Annex 1 the functioning of which they oversee. (a) A request for a waiver concerning this Agreement shall be submitted to the Ministerial Conference for consideration pursuant to the practice of decision-making by consensus. . The Ministerial Conference shall establish a time-period. Amendments to provisions of this Agreement. modify or terminate the waiver. The decision to adopt an interpretation shall be taken by a three-fourths majority of the Members. Article 4 of the Agreement on TRIPS. In each review. respectively. to consider the request. the terms and conditions governing the application of the waiver. the Ministerial Conference shall examine whether the exceptional circumstances justifying the waiver still exist and whether the terms and conditions attached to the waiver have been met. and thereafter annually until the waiver terminates. the provisions of paragraph 3 shall apply to the proposed amendment. the Council for Trade in Services or the Council for TRIPS. A decision by the Ministerial Conference granting a waiver shall state the exceptional circumstances justifying the decision. If consensus is not reached during the time-period. shall take effect for the Members that have accepted them upon acceptance by two thirds of the Members and thereafter for each other Member upon acceptance by it. the Ministerial Conference shall forthwith submit the proposed amendment to the Members for acceptance. they shall have a number of votes equal to the number of their member States(2)which are Members of the WTO. may extend. In exceptional circumstances. 2. 2. which accept this Agreement and the Multilateral Trade Agreements and for which Schedules of Concessions and Commitments are annexed to GATT 1994 and for which Schedules of Specific Commitments are annexed to GATS shall become original Members of the WTO. amendments to the Agreement on TRIPS meeting the requirements of paragraph 2 of Article 71 thereof may be adopted by the Ministerial Conference without further formal acceptance process. Decisions on accession shall be taken by the Ministerial Conference. may decide exclusively by consensus to add that agreement to Annex 4. 2. upon the request of the Members parties to a trade agreement. 6. The Ministerial Conference. Any Member accepting an amendment to this Agreement or to a Multilateral Trade Agreement in Annex 1 shall deposit an instrument of acceptance with the Director-General of the WTO within the period of acceptance specified by the Ministerial Conference. The Ministerial Conference shall approve the agreement on the terms of accession by a two-thirds majority of the Members of the WTO. upon the request of the Members parties to a Plurilateral Trade Agreement. Accession to a Plurilateral Trade Agreement shall be governed by the provisions of that Agreement. The Ministerial Conference may decide by a three-fourths majority of the Members that any amendment made effective under the preceding provision is of such a nature that any Member which has not accepted it within a period specified by the Ministerial Conference in each case shall be free to withdraw from the WTO or to remain a Member with the consent of the Ministerial Conference. Notwithstanding the other provisions of this Article. Decisions to approve amendments to the Multilateral Trade Agreement in Annex 3 shall take effect for all Members upon approval by the Ministerial Conference. 5. This Agreement and the Multilateral Trade Agreements in Annexes 1 and 2 shall not apply as between any Member and any other Member if either of the Members. 4. Except as provided in paragraph 2 above. The decision to approve amendments to the Multilateral Trade Agreement in Annex 2 shall be made by consensus and these amendments shall take effect for all Members upon approval by the Ministerial Conference. financial and trade needs or their administrative and institutional capabilities. Paragraph 1 may be invoked between original Members of the WTO which were contracting parties to GATT 1947 only where Article XXXV of that Agreement had been invoked earlier and was effective as between those contracting parties at the time of entry into force for them of this Agreement. amendments to Parts I. 2. does not consent to such application. other than those listed in paragraphs 2 and 6. II and III of GATS and the respective annexes shall take effect for the Members that have accepted them upon acceptance by two thirds of the Members and thereafter for each Member upon acceptance by it. on terms to be agreed between it and the WTO.ADR (based on ATTY HIGUIT’S OUTLINE)-CHARMAGNE FERRER’S REVIEWER 31 4. 3. Article XII back to top Accession 1. 8. shall take effect for all Members upon acceptance by two thirds of the Members. Article XI back to top Original Membership 1. Amendments to a Plurilateral Trade Agreement shall be governed by the provisions of that Agreement. The least-developed countries recognized as such by the United Nations will only be required to undertake commitments and concessions to the extent consistent with their individual development. The Ministerial Conference. Any State or separate customs territory possessing full autonomy in the conduct of its external commercial relations and of the other matters provided for in this Agreement and the Multilateral Trade Agreements may accede to this Agreement. The contracting parties to GATT 1947 as of the date of entry into force of this Agreement. The Ministerial Conference may review the operation of this Article in particular cases at the . Any Member of the WTO may initiate a proposal to amend the provisions of the Multilateral Trade Agreements in Annexes 2 and 3 by submitting such proposal to the Ministerial Conference. may decide to delete that Agreement from Annex 4. V and VI of GATS and the respective annexes shall take effect for all Members upon acceptance by two thirds of the Members. of a nature that would not alter the rights and obligations of the Members. Amendments to Parts IV. 9. 3. 10. 7. Paragraph 1 shall apply between a Member and another Member which has acceded under Article XII only if the Member not consenting to the application has so notified the Ministerial Conference before the approval of the agreement on the terms of accession by the Ministerial Conference. Article XIII back to top Non-Application of Multilateral Trade Agreements between Particular Members 1. Such accession shall apply to this Agreement and the Multilateral Trade Agreements annexed thereto. and the European Communities. Amendments to provisions of this Agreement or of the Multilateral Trade Agreements in Annexes 1A and 1C. at the time either becomes a Member. 5. 3. in a single copy. the provision of this Agreement shall prevail to the extent of the conflict. in the English. 2. to each government and the European Communities having accepted this Agreement. . 6. by contracting parties to GATT 1947. Such Agreements shall be deposited with the Director-General to the CONTRACTING PARTIES to GATT 1947. 2. The acceptance and entry into force of a Plurilateral Trade Agreement shall be governed by the provisions of that Agreement. Upon the entry into force of this Agreement. To the extent practicable. This Agreement shall be open for acceptance. Article XV back to top Withdrawal 1. The Director-General shall promptly furnish a certified true copy of this Agreement and the Multilateral Trade Agreements. 2. such Agreements shall be deposited with the Director-General of the WTO. the Secretariat of GATT 1947 shall become the Secretariat of the WTO. Except as otherwise provided under this Agreement or the Multilateral Trade Agreements. In the event of a conflict between a provision of this Agreement and a provision of any of the Multilateral Trade Agreements. Any Member may withdraw from this Agreement. Such withdrawal shall apply both to this Agreement and the Multilateral Trade Agreements and shall take effect upon the expiration of six months from the date on which written notice of withdrawal is received by the Director-General of the WTO. the WTO shall be guided by the decisions. 3. A Member which accepts this Agreement after its entry into force shall implement those concessions and obligations in the Multilateral Trade Agreements that are to be implemented over a period of time starting with the entry into force of this Agreement as if it had accepted this Agreement on the date of its entry into force. be deposited with the Director-General of the WTO. regulations and administrative procedures with its obligations as provided in the annexed Agreements. which are eligible to become original Members of the WTO in accordance with Article XI of this Agreement. 4. and a notification of each acceptance thereof. procedures and customary practices followed by the CONTRACTING PARTIES to GATT 1947 and the bodies established in the framework of GATT 1947.ADR (based on ATTY HIGUIT’S OUTLINE)-CHARMAGNE FERRER’S REVIEWER 32 request of any Member and make appropriate recommendations. An acceptance following the entry into force of this Agreement shall enter into force on the 30th day following the date of such acceptance. each text being authentic. Such acceptance shall apply to this Agreement and the Multilateral Trade Agreements annexed hereto. DONE at Marrakesh this fifteenth day of April one thousand nine hundred and ninety-four. Reservations in respect of any of the provisions of the Multilateral Trade Agreements may only be made to the extent provided for in those Agreements. Non-application of a Plurilateral Trade Agreement between parties to that Agreement shall be governed by the provisions of that Agreement. Article XVI back to top Miscellaneous Provisions 1. Entry into Force and Deposit 1. Article XIV back to top Acceptance. upon the entry into force of this Agreement. by signature or otherwise. This Agreement and the Multilateral Trade Agreements annexed hereto shall enter into force on the date determined by Ministers in accordance with paragraph 3 of the Final Act Embodying the Results of the Uruguay Round of Multilateral Trade Negotiations and shall remain open for acceptance for a period of two years following that date unless the Ministers decide otherwise. the text of this Agreement and the Multilateral Trade Agreements shall be deposited with the DirectorGeneral to the CONTRACTING PARTIES to GATT 1947. 4. Each Member shall ensure the conformity of its laws. shall serve as Director-General of the WTO. Explanatory Notes: back to top The terms “country” or “countries” as used in this Agreement and the Multilateral Trade Agreements are to be understood to include any separate customs territory Member of the WTO. Reservations in respect of a provision of a Plurilateral Trade Agreement shall be governed by the provisions of that Agreement. No reservations may be made in respect of any provision of this Agreement. French and Spanish languages. and the European Communities. This Agreement shall be registered in accordance with the provisions of Article 102 of the Charter of the United Nations. This Agreement and the Multilateral Trade Agreements. Withdrawal from a Plurilateral Trade Agreement shall be governed by the provisions of that Agreement. and any amendments thereto. and the Director-General to the CONTRACTING PARTIES to GATT 1947. until such time as the Ministerial Conference has appointed a Director-General in accordance with paragraph 2 of Article VI of this Agreement. Until the entry into force of this Agreement. 5. shall. The DSB is responsible for administering the DSU. arbitrators. two weeks later it is circulated to all the members of the WTO. 45 days Panel set up and panellists appointed 6 months Final panel report to parties If a member state considers that a measure adopted by another member state has deprived it of a benefit accruing to it under one of the covered agreements. Article 21. is to settle disputes. By January 2008. they are not permitted to attend or make submissions separate from those of the state in question. member states can engage in consultations to resolve trade disputes pertaining to a "covered agreement" or.[12] Disputes can also arise under Non-violation nullification of benefits claims. i. sits to receive written and oral submissions of the parties.[2] Duration of a Dispute Settlement procedure These approximate periods for each stage of a dispute settlement procedure are target figures The agreement is flexible. such expression shall be read as pertaining to that customs territory. for overseeing the entire dispute settlement process. Totals are also approximate.[7] Like the General Council. unless the DSB by consensus decides not to adopt the report or a party to the dispute gives notice of its intention to appeal. normally consisting of three members appointed ad hoc by the Secretariat."[3] Dispute Settlement Understanding Prompt compliance with recommendations or rulings of the DSB is essential in order to ensure effective resolution of disputes to the benefit of all Members.[2] A former WTO Director-General characterized the WTO dispute settlement system as "the most active international adjudicative mechanism in the world today.[11] The panel.ADR (based on ATTY HIGUIT’S OUTLINE)-CHARMAGNE FERRER’S REVIEWER 33 In the case of a separate customs territory Member of the WTO. through consultations if possible. it may call for consultations with the other member state. adopt panel and Appellate Body reports. the complainant state may request the establishment of a Panel. etc.[4] Pursuant to the rules detailed in the DSU. the report is required to be adopted at a meeting of the DSB within 60 days of its circulation. primarily of the Dispute Settlement Body (DSB). however.1 of the DSU In 1994. the Appellate Body. unless otherwise specified. on the basis of which it is expected to make findings and conclusions for presentation to the DSB. have a WTO panel hear the case. the DSB is composed of representatives of all WTO Members. and as the organization's "unique contribution to the stability of the global economy". In sharp contrast with other systems. and even when private parties are directly concerned. unless the DSB by consensus decides otherwise.[8] The DSB meets as often as necessary to adhere to the timeframes provided for in the DSU. By joining the WTO. mediation. It is not possible for the respondent state to prevent or delay the establishment of a Panel. In addition. the WTO members agreed on the Understanding on Rules and Procedures Governing the Settlement of Disputes or Dispute Settlement Understanding (DSU) (annexed to the "Final Act" signed in Marrakesh in 1994). and authorize the suspension of obligations under the covered agreements. the WTO organ responsible for adjudication of disputes.A unique contribution The operation of the WTO dispute settlement process involves the parties and third parties to a case and may also involve the DSB panels. independent experts.[9] [edit] From complaint to final report — World Trade Organization. It also has the authority to establish panels.[13] The final version of the panel's report is distributed first to the parties. The proceedings are confidential. 60 days Consultations. if unsuccessful. [10] If consultations fail to resolve the dispute within 60 days after receipt of the request for consultations. they will use the multilateral system of settling disputes instead of taking action unilaterally — this entails abiding by agreed procedures (Dispute Settlement Understanding) and respecting judgments. and several specialized institutions.[14] A party may appeal a panel report to the standing Appellate Body. maintain surveillance of implementation of rulings and recommendations. Dispute settlement is regarded by the World Trade Organization (WTO) as the central pillar of the multilateral trading system. the WTO Secretariat. member countries have agreed that if they believe fellow members are in violation of trade rules. where an expression in this Agreement and the Multilateral Trade Agreements is qualified by the term “national”.[5] The priority. but only on issues of law and legal interpretations developed by the .e. the countries can settle their dispute themselves at any stage. 3 weeks Final panel report to WTO members 60 days Dispute Settlement Body adopts report (if no appeal) Total = 1 year (without appeal) 60–90 days Appeals report 30 days Dispute Settlement Body adopts appeals report Total = 1 year 3 months (with appeal) Source:Understanding the WTO: Settling Disputes .[1] A dispute arises when one member country adopts a trade policy measure or takes some action that one or more fellow members considers to a breach of WTO agreements or to be a failure to live up to obligations. only about 136 of the nearly 369 cases had reached the full panel process.[6] The General Council discharges its responsibilities under the DSU through the Dispute Settlement Body (DSB). but they cannot derail it. but may be expected to consist of the grant of a concession by the respondent state on a product or service of interest to the complainant state. the DSU contains several provisions directed to developing countries. [18] [edit] Compliance The DSU addresses the question of compliance and retaliation.ADR (based on ATTY HIGUIT’S OUTLINE)-CHARMAGNE FERRER’S REVIEWER 34 panel.[citation needed] Whether or not the complainant has taken a measure of retaliation. if possible by the original panel members or by an arbitrator or arbitrators appointed by the DirectorGeneral.[21] In contrast to prior GATT practice.[24] which declared US cotton subsidies illegal.] within thirty days of the expiry of the reasonable period". but apparently without the possibility of appeal from its decision.[22] While such "retaliatory measures" are a strong mechanism when applied by economically powerful countries like the United States or the European Union. that disagreement is to be decided by a panel.[25] [edit] Developing countries Like most of the agreements adopted in the Uruguay Round. the deadlines for the developing country to make its submissions may be relaxed. and if consultations fail.[20] If no agreement on compensation is reached within twenty days of the expiry of the "reasonable period". Whether or not a developing country is a party to a particular proceeding. "particular attention" is to be paid to the interests of the developing countries in the course of implementing recommendations and rulings of panels. the Secretariat is authorized to make a qualified legal expert available to any developing country on request.[17] Unless otherwise agreed by the parties to the dispute. the time for consultations (before a panel is convened) may be extended.[30] As to substance.[19] [edit] Compensation and retaliation If all else fails. and even if the complainant party or the panel accepts that assertion.[28] If a complaint is brought against a developing country.. The DSU provides that even if the respondent asserts that it has complied with the recommendation in a report.[27] Further. If there is a disagreement as to the satisfactory nature of the measures adopted by the respondent state to comply with the report. modify or reverse the panel's legal findings and conclusions. to be completed within sixty days from expiration of the reasonable period.. that party is entitled to have at least one panelist who comes from a developing country. The DSU states unequivocally that an Appellate Body report shall be adopted by the DSB and unconditionally accepted by the parties. for example. with the March 2005 Appellate Body ruling in case DS 267. the DSU provides that the report of panels shall "explicitly indicate" how account has been taken of the "differential and more favorable treatment" provisions of the agreement under which the complaint is brought. Each appeal is heard by three members of the permanent seven-member Appellate Body set up by the Dispute Settlement Body and broadly representing the range of WTO membership. two more possibilities are set out in the DSU: If a member fails within the "reasonable period" to carry out the recommendations and rulings. Members of the Appellate Body have four-year terms. the Director-General and the Chairman of the DSB stand ready to offer their good offices before a formal request for a panel is made. it may negotiate with the complaining state for a mutually acceptable compensation.[15] The possibility for appeal makes the WTO dispute resolution system unique among the judicial processes of dispute settlement in general public international law. They must be individuals with recognized standing in the field of law and international trade. with an absolute maximum of 90 days. the member concerned is to inform the DSB of its intentions in respect of implementation of the recommendations and rulings. Normally appeals should not last more than 60 days.[31] In order .[29] Also. If the respondent state objects to the level of suspension proposed or to the consistency of the proposed suspension with the DSU principles. Formal complaints against least developed countries are discouraged. if one party to a dispute is a developing country. surveillance by the DSB is to continue. the DSB is supposed to keep the implementation of the recommendations under surveillance. to see whether the recommendations of the panel or the Appellate Body have been implemented. not affiliated with any government. If no agreement is reached about the reasonable period for compliance. the period from establishment of the panel to consideration of the report by the DSB shall as a general rule not exceed nine months if there is no appeal. it is to have a "reasonable period of time" in which to comply.[20] The DSU makes clear that retaliation is not favored. in that the DSB "shall grant the authorization [. The Appellate Body may uphold. that issue is to be the subject of binding arbitration. Within thirty days of the adoption of the report. and if the dispute goes to a panel.[22] Any suspension or concession or other obligation is to be temporary. the arbitrator is to be appointed by agreement of the parties.[26] The Understanding states that members should give "special attention" to the problems and interests of developing country members. when applied by economically weak countries against stronger ones. they can often be ignored. authorization to suspend concessions in this context is semi-automatic. unless it decides by consensus to reject the request.[16] Members may express their views on the report of the Appellate Body. still another arbitration is provided for. unless the DSB decides by consensus within thirty days of its circulation not to adopt the report.[23] This has been the case. the prevailing state may request authorization from the DSB to suspend application to the member concerned of concessions or other obligations under the covered agreements. If the member explains that it is impracticable to comply immediately with the recommendations and rulings. if possible the same panel that heard the original dispute. Compensation is not defined. and twelve months if there is an appeal. and sets the criteria for retaliation. N. and served as the President of the American Society of International Law. ENFORCEMENT AND RECOGNITION OF AWARDS 1. International arbitration is an increasingly popular means of alternative dispute resolution for crossborder commercial transactions. the New York Convention is by far the most important. Once a dispute between parties is settled. it applies to arbitrations which are not considered as domestic awards in the state where recognition and enforcement is sought. an arbitration award issued in any other state can generally be freely enforced in any other contracting state (save that some contracting . French. the Cook Islands (a New Zealand dependent territory). Convention on the Enforcement of Awards Recognition and Foreign Arbitral From Wikipedia. and confidentiality. Unless the assets of the losing party are located in the country where the court judgment was rendered. Countries which have adopted the New York Convention have agreed to recognize and enforce international arbitration awards. the winning party needs to collect the award or judgment. Summary of provisions Under the Convention. the free encyclopedia Jump to: navigation. Though other international conventions apply to the cross-border enforcement of arbitration awards. Member States have not yet adopted the New York Convention. 2011. Unless there is a treaty on recognition of court judgments between the country where the judgment is rendered and the country where the winning party seeks to collect. that arbitration awards are final and not ordinarily subject to appeal. an Advisory Centre on WTO Law was established in 2001. The Conference was chaired by Willem Schurmann. was adopted by a United Nations diplomatic conference on 10 June 1958 and entered into force on 7 June 1959. The aim is to level the playing field for these countries and customs territories in the WTO system by enabling them to have a full understanding of their rights and obligations under the WTO Agreement 1. the winning party needs to obtain a court judgment in the jurisdiction where the other party resides or where its assets are located. a leading figure in international law who later taught at Columbia Law School and the Columbia School of International and Public Affairs. and the Holy See have adopted the New York Convention. Russian and Spanish Convention on the Recognition and Enforcement of Foreign Arbitral Awards at Wikisource The Convention on the Recognition and Enforcement of Foreign Arbitral Awards. 1. The primary advantage of international arbitration over court litigation is enforceability: an international arbitration award is enforceable in most countries in the world. the International Chamber of Commerce (ICC) produced the first draft Convention on the Recognition and Enforcement of International Arbitral Awards to the United Nations Economic and Social Council.ADR (based on ATTY HIGUIT’S OUTLINE)-CHARMAGNE FERRER’S REVIEWER 35 to assist developing countries in overcoming their limited expertise in WTO law and assist them in managing complex trade disputes. also known as the New York Convention. the winning party will be unable to use the court judgment to collect. Contents [hide] 1 Background 2 Summary of provisions 3 Parties to the New York Convention 4 States which are Not Party to the New York Convention 5 United States Issues 6 External links 7 References Background In 1953. Other advantages of international arbitration include the ability to select a neutral forum to resolve disputes. A number of British dependent territories have not yet had the Convention extended to them by Order in Council. Widely considered the foundational instrument for international arbitration. US Effective 7 June 1959 Condition 3 ratifications Signatories 24 Parties 146 Depositaries Secretary-General of the United Nations Languages Chinese.[1] 49 U. English. As of July 23. search New York Convention Convention on the Recognition and Enforcement of Foreign Arbitral Awards Signed June 10. 1958 Location New York. the ability to choose flexible procedures for the arbitration. the Council submitted the convention to the International Conference in the Spring of 1958. there are 146 signatories which have adopted the New York Convention: 144 of the 193 United Nations Member States. The Convention requires courts of contracting states to give effect to private agreements to arbitrate and to recognize and enforce arbitration awards made in other contracting states. With slight modifications. the Dutch Permanent Representative to the United Nations and Oscar Schachter. Turks and Caicos Islands. Member States have not adopted the Convention. About fifty of the U. 253. See also Valentine v. 1. 2695 (2006). 126 S. ex rel. Conciliation • This is used to refer to a number of different processes. or enforcement would be contrary to "public policy". There are no formal rules to governing how negotiations should be conducted. Neilson. . 1. accountants.S. Oregon. Medellin v. The British Virgin Islands have implemented the New York Convention into domestic law (Arbitration Ordinance 1976). 2669. 103 (1936). in which case participation may be mandatory and the conciliator may be obliged to ensure that the solution reached adheres to the relevant legislation. trusted friends or other technical or professional advisers are often called upon to fulfil this role. Falkland Islands. Montserrat. or was otherwise unable to present its case. which incorporate the New York Convention. either in the country where the arbitration took place. although there are culturally acceptable approaches. or has been set aside or suspended by a competent authority. Although you can try to persuade a difficult person to see it your way. transmitting offers of settlement between the parties but taking a much less active role in the negotiation than a mediator. to be regarded in courts of justice as equivalent to an act of the Legislature. the award has not yet become binding upon the parties. Neidecker.ADR (based on ATTY HIGUIT’S OUTLINE)-CHARMAGNE FERRER’S REVIEWER 36 states may elect to enforce only awards from other contracting states . It is. act of Congress). 314 (1829). a party was not given proper notice of the appointment of the arbitrator or of the arbitration proceedings. 1. 1. British Overseas Territories to which the New York Convention has not yet been extended by Order in Council are: Anguilla. the United States Supreme Court has repeatedly held that a self-executing treaty is an act of the Legislature (i. the composition of the arbitral tribunal was not in accordance with the agreement of the parties or.Ct. over a course of 181 years.[2] However. with the law of the place where the hearing took place (the "lex loci arbitri"). 2103 (2005). Mediation In mediation.the "reciprocity" reservation). 57 S. a neutral third party mediator facilitates the negotiation of a solution by the parties involved. LEADR NZ mainly deals with mediation. the recognition of foreign arbitral awards is governed by chapter 2 of the Federal Arbitration Act. the Supreme Court held “Our constitution declares a treaty to be the law of the land.” Foster v. the subject matter of the award was not capable of resolution by arbitration. 1. TYPES OF ADR 1. you are merely discussing or arguing your way through a problem unless you can vary the terms and commit resources. 2.. or • the processes used in agencies that administer legislative rights. 27 U. 100. Negotiation Negotiation involves “conferring with another with a view to agreement”. In Foster v. the award deals with an issue not contemplated by or not falling within the terms of the submission to arbitration. British Virgin Islands. Lawyers. the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the "Convention") does not preempt state law. 146 of the 193 United Nations Member States have adopted the New York Convention. Neilson. or pursuant to the law of the arbitration agreement. under the law applicable to him. 1. U.Ct. Taiwan has not adopted the Convention and a number of British Overseas Territories have not had the Convention extended to them by Order in Council. These defenses are: a party to the arbitration agreement was. The Convention has also been ratified by Holy See and the Cook Islands.S. 3. The most common are: • where a third party acts as a conduit. or contains matters beyond the scope of the arbitration (subject to the proviso that an award which contains decisions on such matters may be enforced to the extent that it contains decisions on matters submitted to arbitration which can be separated from those matters not so submitted). limited defenses. failing such agreement. Parties to the New York Convention As of May 2012. consequently. Sanchez-Llamas v.e. only subject to certain. Negotiation is much more than persuasion. United States Issues Under American law.N. 2088. Saint Helena (including Ascension and Tristan da Cunha). the arbitration agreement was not valid under its governing law. although Britain has never issued an Order in Council legally extending the New York Convention to the British Virgin Islands. In addition. Explore our mediation section for full details. Thus.Ct. 125 S. whenever it operates of itself without the aid of any legislative provision. Dretke. under some incapacity. Assisted negotiation Here the parties are assisted in their negotiations by a third party who coaches or represents them in the negotiations without a formalised structure. It is also usually private and confidential. whereas in judicial proceedings the official language of the country of the competent court will be automatically applied because of the provisions of the New York Convention 1958. the parties waive their rights to access the courts and to have a judge or jury decide the case in some arbitration agreements. the recovery of attorneys' fees is unavailable. specifically. a form of alternative dispute resolution (ADR). It is a resolution technique in which a third party reviews the evidence in the case and imposes a decision that is legally binding for both sides and enforceable. although in some jurisdictions. and can be made confidential[7] in arbitral proceedings the language of arbitration may be chosen. arbitrators with an appropriate degree of expertise can be appointed (as one cannot "choose the judge" in litigation)[5] arbitration is often faster than litigation in court )[6] arbitration can be cheaper and more flexible for businesses[citation needed] arbitral proceedings and an arbitral award are generally non-public. when there are multiple arbitrators on the panel. an indication of the quantum of damages payable. arbitrary awards have fewer enforcement options than judgments. There are limited rights of review and appeal of arbitration awards. which means that an erroneous decision cannot be easily overturned although usually thought to be speedier. However. especially in small consumer disputes[citation needed] in some arbitration agreements and systems. Arbitration Arbitration involves submitting a dispute to an arbitrator who hears arguments from the parties then resolves the conflict by making a decision (usually binding) called an ‘award’. or legislation has decreed. what disputes will ever occur) and can be either binding or non-binding. without necessarily knowing. which is sometimes an advantage because it limits the duration of the dispute and any associated liability Some of the disadvantages include: arbitration may become highly complex[citation needed] arbitration may be subject to pressures from powerful law firms representing the stronger and wealthier party[citation needed] arbitration agreements are sometimes contained in ancillary agreements. The courts can enforce the award. There are varying degree of formality in how evidence is presented during arbitration. the parties are required to pay for the arbitrators. particularly in the context of international commercial transactions. however most arbitration codes and agreements provide for the same relief that could be granted in court if the arbitrator or the arbitration forum depends on the corporation for repeat business. "arbiters" or "arbitral tribunal"). Non-binding arbitration is similar to mediation in that a decision can not be imposed on the parties. and consumers and employees often do not know in advance that they have agreed to mandatory binding pre-dispute arbitration by purchasing a product or taking a job if the arbitration is mandatory and binding. Arbitration. arbitration awards are generally easier to enforce in other nations than court judgments in most legal systems there are very limited avenues for appeal of an arbitral award. will be final and binding. the principal distinction is that whereas a mediator will try to help the parties find a middle ground on which to compromise. there may be an inherent incentive to rule against the consumer or employee there are very limited avenues for appeal. which adds an additional layer of legal cost that can be prohibitive. where the parties to a dispute refer it to one or more persons (the "arbitrators".ADR (based on ATTY HIGUIT’S OUTLINE)-CHARMAGNE FERRER’S REVIEWER 37 1. although in the United States arbitration awards are enforced in the same manner as court judgments and have the same effect arbitrators are generally unable to enforce interlocutory measures against a party. if appropriate. by whose decision (the "award") they agree to be bound. making it difficult or impossible for consumers or employees to get legal representation[citation needed]. Arbitration can be either voluntary or mandatory (although mandatory arbitration can only come from a statute or from a contract that is voluntarily entered into. By one definition arbitration is binding and so non-binding arbitration is technically not arbitration. This approach provides greater flexibility and more party control than the formal court system. court proceedings are sometimes referred as arbitrations[3] alternative dispute resolution (or ADR) Parties often seek to resolve their disputes through arbitration because of a number of perceived potential advantages over judicial proceedings: when the subject matter of the dispute is highly technical. or in small print in other agreements. where arbitration may be mandated by the terms of employment or commercial contracts. 4. making it . juggling their schedules for hearing dates in long cases can lead to delays in some legal systems.[1] Other forms of ADR include mediation[2] (a form of settlement negotiation facilitated by a neutral third party) and non-binding resolution by experts. the (non-binding) arbitrator remains totally removed from the settlement process and will only give a determination of liability and. where the parties agree to hold all existing or future disputes to arbitration. Arbitration is often used for the resolution of commercial disputes. Arbitration is a proceeding in which a dispute is resolved by an impartial adjudicator whose decision the parties to the dispute have agreed. Arbitration is not the same as: judicial proceedings. is a legal technique for the resolution of disputes outside the courts. The use of arbitration is also frequently employed in consumer and employment matters. although they cannot disregard the law[citation needed] discovery may be more limited in arbitration or entirely nonexistent the potential to generate billings by attorneys may be less than pursuing the dispute through trial unlike court judgments.ADR (based on ATTY HIGUIT’S OUTLINE)-CHARMAGNE FERRER’S REVIEWER 38 easier for a party to take steps to avoid enforcement of member or a small group of members in arbitration due to increasing legal fees. status and family law are generally not considered to be arbitrable. it will be resolved by arbitration.g. called an action to "confirm" an award although grounds for attacking an arbitration award in court are limited.if the contract (valid or otherwise) contains an arbitration clause. the courts have accepted that: 1. the law is generally keen to uphold the validity of arbitration clauses even when they lack the normal formal language associated with legal contracts. Some legal orders exclude or restrict the possibility of arbitration for reasons of the protection of weaker members of the public. many fine-print arbitration agreements are inserted in situations in which consumers and employees have no bargaining power. However. arbitration awards themselves are not directly enforceable. a common defence is to plead the contract is void and thus any claim based upon it fails.[12] Arbitration agreement See also: Arbitration clause In theory. In general.[9] Matters relating to crimes. is the arbitration tribunal. by ICC Rules in London"[15] The courts have also upheld clauses which specify resolution of disputes other than in accordance with a specific legal system. in most countries. Such agreements are generally divided into two types: agreements which provide that. and in other contexts in which meaningful consent is not realistic. For example. an arbitral panel would have no power to order the relevant body to rectify any patent registration based upon its determination. arbitration is a consensual process. a determination of whether a patent has been infringed could be adjudicated upon by an arbitration tribunal. arbitration clauses are frequently placed within sealed users' manuals within products. e. parts of claims may be arbitrable and other parts not. in certain Commonwealth countries. efforts to confirm the award can be fiercely fought[citation needed]. however. For example. These include provision indicating: that the arbitrators "must not necessarily judge according to the strict law but as a general rule ought chiefly to consider the principles of practical business"[16] "internationally accepted principles of law governing contractual relations"[17] Agreements to refer disputes to arbitration generally have a special status in the eyes of the law. but they contain an arbitration clause agreements which are signed after a dispute has arisen. In keeping with the informality of the arbitration process. or which are being conducted in the public interest. until the 1980s. if a dispute should arise. then each clause contained within the contract. it is possible to provide that each party should bear their own costs in a conventional arbitration clause. [edit] Arbitrability By their nature. then the proper forum to determine whether the contract is void or not. two groups of legal procedures cannot be subjected to arbitration: Procedures which necessarily lead to a determination which the parties to the dispute may not enter into an agreement upon:[8] Some court procedures lead to judgments which bind all members of the general public. consumers. Moreover. in disputes on a contract. as the power of the parties to enter into an agreement upon these matters is at least restricted. but the validity of a patent could not: As patents are subject to a system of public registration. Clauses which have been upheld include: "arbitration in London .[18] . Examples: German law excludes disputes over the rental of living space from any form of arbitration[10]. In practice. These will generally be normal contracts. For example. agreeing that the dispute should be resolved by arbitration (sometimes called a "submission agreement") The former is the far more prevalent type of arbitration agreement. or third parties. and 2. antitrust matters were not arbitrable in the United States. the subject matter of some disputes is not capable of arbitration. including the arbitration clause. Sometimes. would be void.English law to apply"[13] "suitable arbitration clause"[14] "arbitration. while arbitration agreements with consumers are only considered valid if they are signed by either party. For example. without explaining to the members the adverse consequences of an unfavorable ruling rule of applicable law is not necessarily binding on the arbitrators. but not in a submission agreement. most other disputes that involve private rights between two parties can be resolved using arbitration. legal significance attaches to the type of arbitration agreement.[11] and if the signed document does not bear any other content than the arbitration agreement. thus necessitating huge legal expenses that negate the perceived economic incentive to arbitrate the dispute in the first place. However. within lengthy click-through agreements on websites.a contract can only be declared void by a court or other tribunal. In some disputes. A party seeking to enforce an arbitration award must resort to judicial remedies. in a dispute over patent infringement. or public authorities in their capacity as such. if any. It follows that if a party successfully claims that a contract is void. a party cannot be forced to arbitrate a dispute unless he agrees to do so. INQUIRY AND FACT FINDING 1. April 2. most courts will be reluctant to interfere with the general rule which does allow for commercial expediency. the State shall provide means for the use of ADR as an efficient tool and an alternative procedure for the resolution of appropriate cases. AND FOR OTHER PURPOSES Be it enacted by the Senate and House of Representatives of the Philippines in Congress assembled: CHAPTER 1 .States regulate arbitration through a variety of laws. or any combination thereof as a means of achieving speedy and efficient means of . taking into account the information presented to them. with strict rules of evidence.it is hereby declared the policy of the State to actively promote party autonomy in the resolution of disputes or the freedom of the party to make their own arrangements to resolve their disputes. In addition to this. putting responsibility for a solution back into the hands of the parties. such as mediation. Sources of law---. By far the most important international instrument on arbitration law[citation needed] is the 1958 New York Convention on Recognition and Enforcement of Foreign Arbitral Awards. if a person is made to sign a contract under duress. together with the adversarial nature of the process. analysis and argument. 9285 1. . Independent expert appraisal or early neutral evaluation This is where the parties appoint an independent expert to investigate and provide an opinion on the issues in dispute. Title. The legal framing. In some cases. and the contract contains an arbitration clause highly favourable to the other party. Republic Act No. GOOD OFFICES DOMESTIC ARBITRATION 1. the parties agree to be bound by the opinion. The process may then become a type of mediation on the draft opinion. . which is often submitted to them in draft form before being finalised. arbitration. the State shall enlist active private sector participation in the settlement of disputes through ADR.[citation needed] Conversely a court may be persuaded that the arbitration agreement itself is void having been signed under duress. 1." SEC. 5. Declaration of Policy. the dispute may still referred to that arbitration tribunal.ADR (based on ATTY HIGUIT’S OUTLINE)-CHARMAGNE FERRER’S REVIEWER 39 Arguably. Towards this end. However. any other solution (where one first had to go to court to decide whether one had to go to arbitration) would be self defeating. It is formal. and adversarial. means that the system has little scope for reconciling or accommodating the parties' interests. in a structured information exchange. 6. INTRODUCTION TO DOMESTIC COMMERCIAL DISPUTE RESOLUTION 1. Likewise. Sometimes an independent third party will chair the presentation. 2004 AN ACT TO INSTITUTIONALIZE THE USE OF AN ALTERNATIVE DISPUTE RESOLUTION SYSTEM IN THE PHILIPPINES AND TO ESTABLISH THE OFFICE FOR ALTERNATIVE DISPUTE RESOLUTION.This act shall be known as the "Alternative Dispute Resolution Act of 2004. either position is potentially unfair. 2. The main body of law applicable to arbitration is normally contained either in the national Private International Law Act (as is the case in Switzerland) or in a separate law on arbitration (as is the case in England). This Act shall be without prejudice to the adoption by the Supreme Court of any ADR system. The senior executives then negotiate a solution. the State shall encourage and actively promote the use of Alternative Dispute Resolution (ADR) as an important means to achieve speedy and impartial justice and declog court dockets. conciliation.GENERAL PROVISIONS SECTION 1. a number of national procedural laws may also contain provisions relating to arbitration. either as a basis for solution or simply to clarify the issues. ALTERNATIVE DISPUTE RESOLUTION ACT OF 2004 1. Some other relevant international instruments are: The Geneva Protocol of 1923 The Geneva Convention of 1927 The European Convention of 1961 The Washington Convention of 1965 (governing settlement of international investment disputes) The UNCITRAL Model Law (providing a model for a national law of arbitration) The UNCITRAL Arbitration Rules (providing a set of rules for an ad hoc arbitration) Case presentation or mini-trial This is where in-house representatives present brief summaries of the parties’ cases to senior executives of both parties with authority to settle the dispute. As such. It also produces 'winners and losers'. Litigation This is the system in which the courts impose a binding decision on the parties. oral or written. as defined in this Act. (r) "Mediator" means a person who conducts mediation. 3. (o) "Government Agency" means any government entity. which includes arbitration. in which a neutral third party participates to assist in the resolution of issues. conducting. office or officer. (n) "Early Neutral Evaluation" means an ADR process wherein parties and their lawyers are brought together early in a pre-trial phase to present summaries of their cases and receive a nonbinding assessment by an experienced. (g) "Commercial Arbitration" An arbitration is "commercial if it covers matter arising from all relationships of a commercial nature. or any combination thereof. initiating. This is without prejudice to the rights of the parties to choose nonaccredited individuals to act as mediator. 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. or encrypt a record in whole or in part. early neutral evaluation. Definition of Terms. reports filed or submitted in an arbitration or for expert evaluation. resolve a dispute by rendering an award. after such court has acquired jurisdiction of the dispute. or private persons. relative to the subject of mediation or arbitration. whether contractual or not. execute or adopt a symbol. intended to identity the authenticating party and to adopt. and assist the parties in reaching a voluntary agreement regarding a dispute. (d) "Arbitration" means a voluntary dispute resolution process in which one or more arbitrators. (p) "International Party" shall mean an entity whose place of business is outside the Philippines. (l) "Court-Annexed Mediation" means any mediation process conducted under the auspices of the court. Whenever reffered to in this Act. including any memoranda. mediation. SEC. or neutral evaluator of their dispute. . (s) "Mediation Party" means a person who participates in a mediation and whose consent is necessary to resolve the dispute. other than by adjudication of a presiding judge of a court or an officer of a government agency. expressly intended by the source not to be disclosed. arbitrator. continuing of reconvening mediation or retaining a mediator. neutral evaluator. (h) "Confidential information" means any information. neutral person. (k) "Court" as referred to in Article 6 of the Model Law shall mean a Regional Trial Court. arbitrator or neutral evaluator. or any person exercising similar functions in any Alternative Dispute Resolution system. and (3) pleadings. mini-trial. It shall include (1) communication. arbitrator. (j) "Convention State" means a State that is a member of the New York Convention. (e) "Arbitrator" means the person appointed to render an award. conciliator. the term: (a) "Alternative Dispute Resolution System" means any process or procedure used to resolve a dispute or controversy. conciliator.ADR (based on ATTY HIGUIT’S OUTLINE)-CHARMAGNE FERRER’S REVIEWER 40 resolving cases pending before all courts in the Philippines which shall be governed by such rules as the Supreme Court may approve from time to time. (c) "Authenticate" means to sign. conciliation. in a dispute that is the subject of an arbitration agreement. the term "ADR practitioners" shall refer to individuals acting as mediator. or rules promulgated pursuant to this Act. . made in a dispute resolution proceedings. (b) "ADR Provider" means institutions or persons accredited as mediator. appointed in accordance with the agreement of the parties. (i) "Convention Award" means a foreign arbitral award made in a Convention State. its agencies and instrumentalities. with expertise in the subject in the substance of the dispute. as defined in this Act. participating. witness statements. accept or establish the authenticity of a record or term. (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. notes or work product of the neutral party or non-party participant. other than a court. that is vested by law with quasi-judicial power to resolve or adjudicate dispute involving the government. The term foreigner arbitrator shall mean a person who is not a national of the Philippines. (f) "Award" means any partial or final decision by an arbitrator in resolving the issue in a controversy. facilitates communication and negotiation. motions manifestations. or obtained under circumstances that would create a reasonable expectation on behalf of the source that the information shall not be disclosed. selected by the disputing parties. (2) an oral or written statement made or which occurs during mediation or for purposes of considering. alone or with others. conciliator.For purposes of this Act. (q) "Mediation" means a voluntary process in which a mediator. 71. stenographer. Exception to the Application of this Act.In applying construing the provisions of this Chapter. and the policy that the decision-making authority in the mediation process rests with the parties. (g) criminal liability. Chapter 9. SEC. Electronic Signatures in Global and ECommerce Act. (d) any ground for legal separation. and amicable resolution of disputes in accordance with the principles of integrity of determination by the parties.The provisions of this Chapter shall cover voluntary mediation. CHAPTER 2 . . SEC. a mediator. or a nonparty participant may refuse to disclose and may prevent any other person from disclosing a mediation communication. including related prehearing motions. (3) the counsel for the parties. as amended and its Implementing Rules and Regulations. The term "mediation' shall include conciliation. 9. (2) the mediator or mediators. (b) the civil status of persons. SEC.The provisions of this Act shall not apply to resolution or settlement of the following: (a) labor disputes covered by Presidential Decree No. SEC. . (f) a mediator may not be called to testify to provide information gathered in mediation. (c) the validity of a marriage. (e) the jurisdiction of SEC. the policy of fostering prompt. Waiver of Confidentiality. .The provisions of the Electronic Signatures in Global and E-Commerce Act. conferences and discovery. . consideration must be given to the need to promote candor or parties and mediators through confidentiality of the mediation process. 8. courts.A privilege arising from the confidentiality of information may be waived in a record. (bb) "Record" means an information written on a tangible medium or stored in an electronic or other similar medium. (d) In such an adversarial proceeding.Information obtained through mediation proceedings shall be subject to the following principles and guidelines: (a) Information obtained through mediation shall be privileged and confidential. (c) Confidential Information shall not be subject to discovery and shall be inadmissible if any adversarial proceeding. other than court-annexed. or other adjudicative process. SEC. Book of the Administrative Code of 1987. or orally during a proceeding by the mediator and the mediation parties. whether ad hoc or institutional. 442. evidence or information that is otherwise admissible or subject to discovery does not become inadmissible or protected from discovery solely by reason of its use in a mediation. Confidentiality of Information. and (6) any other person who obtains or possesses confidential information by reason of his/her profession. SEC. (f) future legitime. who participates in a mediation proceeding as a witness. the following persons involved or previously involved in a mediation may not be compelled to disclose confidential information obtained during mediation: (1) the parties to the dispute. (w) "New York Convention" means the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards approved in 1958 and ratified by the Philippine Senate under Senate Resolution No. other than a party or mediator. clerk or assistant. administrative. (5) any persons hired or engaged in connection with the mediation as secretary. 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). Liability of ADR Provider and Practitioner. Application and Interpretation. (e) The protections of this Act shall continue to apply even of a mediator is found to have failed to act impartially. However. 6. 7. (4) the nonparty participants. . . . (x) "Non-Convention Award" means a foreign arbitral award made in a State which is not a Convention State. resource person or expert. 10. and (cc) "Roster" means a list of persons qualified to provide ADR services as neutrals or to serve as arbitrators. Scope.ADR (based on ATTY HIGUIT’S OUTLINE)-CHARMAGNE FERRER’S REVIEWER 41 (t) "Mediation-Arbitration" or Med-Arb is a step dispute resolution process involving both mediation and arbitration. 5. retrievable form. A mediator who is wrongfully subpoenaed shall be reimbursed the full cost of his attorney's fees and related expenses. (aa) "Proceeding" means a judicial. (b) A party. otherwise known as the Labor Code of the Philippines. (v) "Model Law" means the Model Law on International Commercial Arbitration adopted by the United Nations Commission on International Trade Law on 21 June 1985. 4. (y) "Non-Convention State" means a State that is not a member of the New York Convention. economical. whether judicial or quasi-judicial. (z) "Non-Party Participant" means a person. and (h) those which by law cannot be compromised.MEDIATION (u) "Mini-Trial" means a structured dispute resolution method in which the merits of a case are argued before a panel comprising senior decision makers with or without the presence of a neutral third person after which the parties seek a negotiated settlement. and its implementing Rules and Regulations shall apply to proceeding contemplated in this Act. (b) As permitted to be disclosed under Section 13 of this Chapter.A mediator may not make a report. admissible for any other purpose. (c) A mediator may not be compelled to provide evidence of a mediation communication or testify in such proceeding. SEC. but this exception does not apply where a child protection matter is referred to mediation by a court or a public agency participates in the child protection mediation. attempt to commit. nonparty participant. or commit a crime. At the request of a mediation party. If a person suffers loss or damages in a judicial proceeding against the person who made the disclosure. assessment. or (7) sought or offered to prove or disprove a claim of complaint of professional misconduct of malpractice filed against a party. Exceptions to Privilege. . 13. SEC. an individual who is requested to serve as a mediator shall: (1) make an inquiry that is reasonable under the circumstances to determinate whether there are any known facts that a reasonable individual would consider likely to affect the impartiality of the mediator. (b) There is no privilege under Section 9 if a court or administrative agency. The admission of particular evidence for the limited purpose of an exception does not render that evidence. and the mediation communication is sought or offered in: (1) a court proceeding involving a crime or felony. that there is a need for the SEC. or other communication regarding a mediation to a court or agency or other authority that make a ruling on a dispute that is the subject of a mediation. only the portion of the communication necessary for the application of the exception for nondisclosure may be admitted. evidence that substantially outweighs the interest in protecting confidentiality. abandonment. or exploitation in a proceeding in which a public agency is protecting the interest of an individual protected by law. evaluation. (b) If a mediation learns any fact described in paragraph (a) (1) of this section after accepting a mediation. that the party seeking discovery of the proponent of the evidence has shown that the evidence is not otherwise available. or conceal an ongoing crime or criminal activity. (2) available to the public or that is made during a session of a mediation which is open. (6) sought or offered to prove or disprove a claim or complaint of professional misconduct or malpractice filed against mediator in a proceeding. or where a settlement was reached. or any other mediation communication. and (2) disclosure to the mediation parties any such fact known or learned as soon as is practical before accepting a mediation. finding. 12. Mediator's Disclosure and Conflict of Interest. or is required by law to be open. (d) If a mediation communication is not privileged under an exception in subsection (a) or (b). finds. recommendation. (a) There is no privilege against disclosure under Section 9 if mediation communication is: (1) in an agreement evidenced by a record authenticated by all parties to the agreement. to the extent that the communication prejudices another person in the proceeding and it is necessary for the person prejudiced to respond to the representation of disclosure. or representative of a party based on conduct occurring during a mediation. (2) a proceeding to prove a claim or defense that under the law is sufficient to reform or avoid a liability on a contract arising out of the mediation. except: (a) Where the mediation occurred or has terminated. to the public. including a financial or personal interest in the outcome of the mediation and any existing or past relationship with a party or foreseeable participant in the mediation. (3) a threat or statement of a plan to inflict bodily injury or commit a crime of violence. the mediator shall disclose it as soon as practicable.ADR (based on ATTY HIGUIT’S OUTLINE)-CHARMAGNE FERRER’S REVIEWER 42 A privilege arising from the confidentiality of information may likewise be waived by a nonparty participant if the information is provided by such nonparty participant.The mediation shall be guided by the following operative principles: (a) Before accepting a mediation. 11. A person who discloses or makes a representation about a mediation is preclude from asserting the privilege under Section 9. . (4) internationally used to plan a crime. . Prohibited Mediator Reports. neglect. or A person who discloses confidential information shall be precluded from asserting the privilege under Section 9 of this Chapter to bar disclosure of the rest of the information necessary to a complete understanding of the previously disclosed information. after a hearing in camera. (5) sought or offered to prove or disprove abuse. an individual who is requested to serve as mediator shall disclose his/her qualifications to mediate a dispute. . .International commercial arbitration shall be governed by the Model Law on International Commercial Arbitration (the "Model Law") adopted by the United Nations Commission on International Trade Law on June 21. and nonparty participants to abide by such rules. Further. 16. if any. 19. 1985 (United Nations Document A/40/17) and recommended approved on December 11. . 17. engineering. leasing.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. CHAPTER 3 . copy of which is hereto attached as Appendix "A". Commercial Arbitration. Adoption of the Model Law on International Commercial Arbitration. . Where there is a need to enforce the settlement agreement. sea. Interpretation of Model Law. (c) If the parties so desire. . financing. SEC. 1985. Referral of Dispute to other ADR Forms. SEC.INTERNATIONAL COMMERCIAL ARBITRATION SEC. . the place of mediation shall be any place convenient and appropriate to all parties. if any. . (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. SEC. 14. 15. The mediator shall certify that he/she explained the contents of the settlement agreement to the parties in a language known to them. SEC.The parties may agree to refer one or more or all issues arising in a dispute or during its pendency to other forms of ADR such as but not limited to (a) the evaluation of a third person or (b) a mini-trial. "International Commercial Arbitration: Analytical Commentary on Draft Trade identified by reference number A/CN. 18. investment. SEC. they may deposit such settlement agreement with the appropriate Clerk of a Regional Trial Court of the place where one of the parties resides. notwithstanding the provisions of Executive Order No. 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. For purposes of this Act. 1985 entitled. (b) The parties and their respective counsels. in accordance with such rules of procedure as may be promulgated by the Supreme Court. licensing. regard shall be had to its international origin and to the need for uniformity in its interpretation and resort may be made to the travaux preparatories and the report of the Secretary General of the United Nations Commission on International Trade Law dated March 25. the latter shall prevail. Legal Representation in International Arbitration. construction of works. 1008 for mediated dispute outside of the CIAC. Participation in Mediation. 21. shall sign the settlement agreement. and by the mediator. Effect of Agreement to Submit Dispute to Mediation Under Institutional Rules. Place of Mediation. 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.In interpreting the Model Law. commercial representation or agency." SEC. the use of other ADR forms shall be governed by Chapter 2 of this Act except where it is combined with arbitration in which case it shall likewise be governed by Chapter 5 of this Act. 876. Enforcement of Mediated Settlement Agreement. factoring. in which case. . A waiver of participation or legal representation may be rescinded at any time. SEC. distribution agreements. whether contractual or not. 22.Except as otherwise provided in this Act. joint venture and other forms of industrial or business cooperation. In case of conflict between the institutional mediation rules and the provisions of this Act. Failing such agreement. 20. or a combination thereof. the parties.ADR (based on ATTY HIGUIT’S OUTLINE)-CHARMAGNE FERRER’S REVIEWER 43 This Act does not require that a mediator shall have special qualifications by background or profession unless the special qualifications of a mediator are required in the mediation agreement or by the mediation parties. otherwise known as the Arbitration Law. insurance.An arbitration is "commercial" if it covers matters arising from all relationships of a commercial nature. A lawyer of this right shall be made in writing by the party waiving it. rail or road.The parties are free to agree on the place of mediation.OTHER ADR FORMS SEC. a petition may be filed by any of the parties with the same court. carriage of goods or passengers by air.In international arbitration conducted in . CHAPTER 4 . consulting. (c) mediation-arbitration. banking. a party may designate a lawyer or any other person to provide assistance in the mediation. .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. Relationships of a transactions: any trade transaction for the supply or exchange of goods or services. the court shall proceed summarily to hear the petition. their respective counsel. 9/264. Where action is commenced by or against multiple parties. . and unless they have agreed to a different procedure. order any party to take such interim measures of protection as the arbitral tribunal may consider necessary in respect of the subject matter of . SEC. (4) Interim or provisional relief is requested by written application transmitted by reasonable means to the Court or arbitral tribunal as the case may be and the party against whom the relief is sought. the arbitral tribunal may. or upon the request of both parties thereafter. a party may be presented by any person of his choice. SEC. shall be considered confidential and shall not be published except (1) with the consent of the parties. and evidence supporting the request. they shall be deemed to have agreed to procedure under such arbitration rules for the selection and appointment of arbitrators. developments. or the regular arbitration arbitration institution under whose rules the arbitration is agreed to be conducted.In interpreting the Act. that such representative. Meaning of "Appointing Authority. shall not be authorized to appear as counsel in any Philippine court. What Functions May be Performed by Appointing Authority.The functions referred to in Articles 11(3). at the request of a party. In ad hoc arbitration. the party against whom the relief is requested. describing in appropriate detail the precise relief. 28. 27. 25. one or more of whom are parties who are bound by the arbitration agreement although the civil action may continue as to those who are not bound by such arbitration agreement. a request for an interim measure of protection or modification thereof. Provided. 11(4). . Further Authority for Arbitrator to Grant Interim Measure of Protection. (6) Either party may apply with the Court for assistance in Implementing or enforcing an interim measure ordered by an arbitral tribunal. (7) A party who does not comply with the order shall be liable for all damages resulting from noncompliance. 24. SEC. 29. - (iv) to compel any other appropriate act or omission. before constitution of the tribunal.Unless otherwise agreed by the parties. including the records. the court shall have due regard to the policy of the law in favor of arbitration. (3) The order granting provisional relief may be conditioned upon the provision of security or any act or omission specified in the order. Referral to Arbitration. however. including all expenses. (b) The following rules on interim or provisional relief shall be observed: (1) Any party may request that provision relief be granted against the adverse party: (2) Such relief may be granted: (i) to prevent irreparable loss or injury: (ii) to provide security for the performance of any obligation. or SEC. or (2) for the limited purpose of disclosing to the court of relevant documents in cases where resort to the court is allowed herein. The arbitral tribunal is deemed constituted when the sole arbitrator or the third arbitrator who has been nominated. SEC. unless admitted to the practice of law in the Philippines. the default appointment of an arbitrator shall be made by the National President of the Integrated Bar of the Philippines (IBP) or his duly authorized representative.A court before which an action is brought in a matter which is the subject matter of an arbitration agreement shall.ADR (based on ATTY HIGUIT’S OUTLINE)-CHARMAGNE FERRER’S REVIEWER 44 the Philippines. from a Court an interim measure of protection and for the Court to grant such measure. 13(3) and 14(1) of the Model Law shall be performed by the Appointing Authority. unless the latter shall fail or refuse to act within thirty (30) days from receipt of the request in which case the applicant may renew the application with the Court. refer the parties to arbitration unless it finds that the arbitration agreement is null and void. (iii) to produce or preserve any evidence. Confidential of Arbitration Proceedings. Provided. has accepted the nomination and written communication of said nomination and acceptance has been received by the party making request. . or any other quasijudicial body whether or not such appearance is in relation to the arbitration in which he appears. inoperative or incapable of being performed. SEC. paid in obtaining the order's judicial enforcement. 26. the grounds for the relief.The arbitration proceedings. Grant of Interim Measure of Protection. evidence and the arbitral award. 23. if at least one party so requests not later that the pre-trial conference. SEC. (5) The order shall be binding upon the parties. the request may be made with the Court. After constitution of the arbitral tribunal and during arbitral proceedings. "Appointing Authority" as used in the Model Law shall mean the person or institution named in the arbitration agreement as the appointing authority. (a) It is not incompatible with an arbitration agreement for a party to request. . may be made with the arbitral tribunal or to the extent that the arbitral tribunal has no power to act or is unable to act effectively.". Where the parties have agreed to submit their dispute to institutional arbitration rules. that the court in which the action or the appeal is pending may issue a protective order to prevent or prohibit disclosure of documents or information containing secret processes. . and reasonable attorney's fees. research and other information where it is shown that the applicant shall be materially prejudiced by an authorized disclosure thereof. Interpretation of the Act. The arbitration of construction disputes shall be governed by Executive Order No. The arbitral tribunal may. bondsman or issuer of an insurance policy in a construction project.DOMESTIC ARBITRATION SEC. including the convenience of the parties shall decide on a different place of arbitration. not later than the pretrial conference. Appointment of Foreign Arbitrator. the place of arbitration shall be in Metro Manila. an arbitrator may act as mediator and a mediator may act as arbitrator. or he/she is the common choice of the two CIAC-accredited arbitrators first appointed one of whom was nominated by the international party.Construction disputes which fall within the original and exclusive jurisdiction of the Construction Industry Arbitration Commission (the "Commission") shall include those between or among parties to. inspection of property that is the subject of the dispute in arbitration. 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. . for hearing witnesses. quantity surveyor. Applicability to Domestic Arbitration. Coverage of the Law. that the parties had entered into an arbitration to be conducted by the CIAC. paragraph 2. or who are otherwise bound by. Court to Dismiss Case Involving a Construction Dispute. directly or by reference whether such parties are project owner. . other property or documents. or the parties. decision or other communication by the arbitral tribunal. unless the arbitral tribunal shall determine a different or another language or languages to be used in the proceedings. SEC. 32. any hearing and any award. Arbitration of Construction Disputes: Governing Law. . CHAPTER 5 . following a successful mediation. Law Governing Domestic Arbitration.The Construction Industry Arbitration 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. 37. to resolve the dispute. 36. subcontractor. preservation. The arbitral tribunal may order that any documentary evidence shall be accompanied by a translation into the language or languages agreed upon by the parties or determined in accordance with paragraph 1 of this section.JUDICIAL REVIEW OF ARBITRAL AWARDS . and (d) the foreign arbitrator shall be of different nationality from the international party. . The provisions of Sections 17 (d) of Chapter 2. rather than the CIAC. 39. Place of Arbitration.The parties are free to agree on the place of arbitration. 10. Failing such agreement. The term "domestic arbitration" as used herein shall mean an arbitration that is not international as defined in Article (3) of the Model Law. Failing such agreement. 30. having regard to the circumstances of the case. 31. SEC. 14. and English or Filipino for domestic arbitration.ADR (based on ATTY HIGUIT’S OUTLINE)-CHARMAGNE FERRER’S REVIEWER 45 the dispute following the rules in Section 28. Such interim measures may include but shall not be limited to preliminary injuction directed against a party. By written agreement of the parties to a dispute. . Authority to Act as Mediator or Arbitrator. 12. 876. Either party may apply with the Court for assistance in implementing or enforcing an interim measures ordered by an arbitral tribunal. 1008. 18 and 19 and 29 to 32 of the Model Law and Section 22 to 31 of the preceding Chapter 4 shall apply to domestic arbitration. CHAPTER 6 . unless otherwise agreed by the parties. otherwise known as "The Arbitration Law" as amended by this Chapter. contractor. and Section 28 and 29 of this Act shall apply to arbitration of construction disputes covered by this Chapter. upon becoming aware. CHAPTER 7 .A regional trial court which a construction dispute is filed shall. 13. experts. Language of the Arbitration. an arbitration agreement.The parties are free to agree on the language or languages to be used in the arbitral proceedings. SEC. the mediator shall issue the settlement agreement in the form of an arbitral award. appointment of receivers or detention. This agreement or determination. or for inspection of goods. Article 8. meet at any place it considers appropriate for consultation among its members. 11. . SEC. SEC. unless otherwise specified therein. Applicability to Construction Arbitration. SEC. 33. unless both parties. shall apply to any written statement by a party. assisted by their respective counsel. 38. The parties may also agree in writing that. otherwise known as the Constitution Industry Arbitration Law.ARBITRATION OF CONSTRUCTION DISPUTES SEC. unless the arbitral tribunal. 34. SEC. the language to be used shall be English in international arbitration. (c) he/she is either coarbitrator upon the nomination of the international party. Domestic arbitration shall continue to be governed by Republic Act No. shall submit to the regional trial court a written agreement exclusive for the Court. 35. The Commission shall continue to exercise original and exclusive jurisdiction over construction disputes although the arbitration is "commercial" pursuant to Section 21 of this Act. SEC. 40. . shall be recognized and enforced as a foreign arbitral award and not a judgment of a foreign court. If the award or agreement is not made in any of the official languages. No. if it considers it proper. DOMESTIC AWARDS SEC. . on the application of the party claiming recognition or enforcement of the award. 44. A foreign arbitral award. or (iv) in the National Judicial Capital Region. . 42. The recognition and enforcement of such arbitral awards shall be filled with regional trial court in accordance with the rules of procedure to be promulgated by the Supreme Court. Any other ground raised against a domestic arbitral award shall be disregarded by the regional trial court. The Court may. (ii) where the asset to be attached or levied upon. vacating. . Vacation Award. .A party to a foreign arbitration proceeding may oppose an application for recognition and enforcement of the arbitral award in accordance with the procedural rules to be promulgated by the Supreme Court only on those grounds enumerated under Article V of the New York Convention.ADR (based on ATTY HIGUIT’S OUTLINE)-CHARMAGNE FERRER’S REVIEWER 46 A. Any other ground raised shall be disregarded by the regional trial court.In a special proceeding for recognition and enforcement of an arbitral award. Recognition and Enforcement of Foreign Arbitral Awards Not Covered by the New York Convention.Proceedings for recognition and enforcement of an arbitration agreement or for vacation. reciprocity. A domestic arbitral award when confirmed shall be enforced in the same manner as final and executory decisions of the Regional Trial Court. shall be enforced in the same manner as final and executory decisions of courts of law of the Philippines. FOREIGN ARBITRAL AWARDS SEC. The applicant shall establish that the country in which foreign arbitration award was made is a party to the New York Convention.A party to a domestic arbitration may question the arbitral award with the appropriate regional trial court in accordance with the rules of procedure to be promulgated by the Supreme Court only on those grounds enumerated in Section 25 of Republic Act No. SEC.The recognition and enforcement of foreign arbitral awards not covered by the New York Convention shall be done in accordance with procedural rules to be promulgated by the Supreme Court. . Said procedural rules shall provide that the party relying on the award or applying for its enforcement shall file with the court the original or authenticated copy of the award and the arbitration agreement. SEC. modifying or correcting an arbitral award may be appealed to the Court of Appeals in accordance with the rules of procedure to be promulgated by the Supreme Court. Appeal from Court Decisions on Arbitral Awards. 876.A. . . 48.A decision of the regional trial court confirming. SEC. 41. grounds of comity and The losing party who appeals from the judgment of the court confirming an arbitral award shall required by the appealant court to post counterbond executed in favor of the prevailing party equal to the amount of the award in accordance with the rules to be promulgated by the Supreme Court. 1008. correction or modification of an arbitral award. when confirmed by the regional trial court. setting aside. Venue and Jurisdiction. or the act to be enjoined is located. The notice shall be sent at least fifteen (15) days before the date set for the initial hearing of the application. SEC. 45. If the application for rejection or suspension of enforcement of an award has been made. Notice of Proceeding to Parties. The confirmation of a domestic award shall be made by the regional trial court in accordance with the Rules of Procedure to be promulgated by the Supreme Court. Confirmation of Award. the party shall supply a duly certified translation thereof into any of such languages. Rejection of a Foreign Arbitral Award. setting aside. B. A foreign arbitral award.The confirmation of a domestic arbitral award shall be governed by Section 23 of R. SEC. or if any party cannot be served notice at such address. 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. SEC. recognize and enforce a nonconvention award as a convention award. A CIAC arbitral award need not be confirmed by the regional trial court to be executory as provided under E. when confirmed by the regional trial court.A foreign arbitral award when confirmed by a court of a foreign country. 876. 46. 43. the regional trial court may. 47. Foreign Arbitral Award Not Foreign Judgment. The New York Convention shall govern the recognition and enforcement of arbitral awards covered by the said Convention. at the option of the applicant. Application of the New York Convention. (iii) where any of the parties to the dispute resides or has his place of business. order the party to provide appropriate security.O. at such party's last known address. . shall be enforced as a foreign arbitral award and not as a judgment of a foreign court. the Court shall send notice to the parties at their address of record in the arbitration. vacate its decision and may also. SEC. the secretary of justice shall convene a committee that shall formulate the appropriate rules and regulations necessary for the implementation of this Act.If for any reason or reasons. and (e) To perform such acts as may be necessary to carry into effect the provisions of this Act. rules and regulations which are inconsistent with the provisions of this Act are hereby repealed. 54. Effectivity. and one (1) member each from the majority and minority of both Houses. any portion or provision of this Act shall be held unconstitutional or invalid. 52.This Act shall not be interpreted to repeal. Implementing Rules and Regulations (IRR). Short Title. 1. decrees.The Office for Alternative Dispute Resolution shall have the following powers and functions: (a) To formulate standards for the training of the ADR practitioners and service providers. Section 1.The amount necessary to carry out the provisions of this Act shall be included in the General Appropriations Act of the year following its enactment into law and thereafter. amended or modified accordingly. chairman of the House Committee on Justice. . 50. Appropriations. submit the IRR to the Joint Congressional Oversight Committee for review and approval. and recommend to Congress needful statutory changes to develop. Office for Alternative Dispute Resolution. (c) To coordinate the development. develop and expand the use of ADR in the private and public sectors. The Oversight Committee shall be composed of the chairman of the Senate Committee on Justice and Human Rights. SEC. SEC.This Act shall be known as "The Arbitration Law. composed of representatives from: (e) A representative from the arbitration profession. The executive director shall be appointed by the President of the Philippines. amend or modify the jurisdiction of the Katarungan Pambarangay under Republic Act No. AN ACT TO AUTHORIZE THE MAKING OF ARBITRATION AND SUBMISSION AGREEMENTS. The objective of the office are: (a) to promote. REPUBLIC ACT NO. . 49. 53. and To assist the government to monitor.This act shall take effect fifteen days (15) after its publication in at least two (2) national newspapers of general circulation. Section 2. 876 ARBITRATION LAW OF THE PHILIPPINES (b) the Department of Trade and Industry. (d) To charge fees for their services. Within one (1) month after the approval of this Act. SEC. SEC. implementation. . and (g) A representative from the ADR organizations shall within three (3) months after convening. otherwise known as the Local Government Code of 1991. Powers and Functions of the Office for Alternative Dispute Resolution. SEC. executive orders. Two or more persons or parties may submit to the (a) the Department of Justice. SEC. 55.ADR (based on ATTY HIGUIT’S OUTLINE)-CHARMAGNE FERRER’S REVIEWER 47 CHAPTER 8 . Strengthen and improve ADR practices in accordance with world standards. AND FOR OTHER PURPOSES (c) the Department of the Interior and Local Government. Separability Clause. 56. . monitoring. . There is hereby established the Office for Alternative Dispute Resolution as an attached agency to the Department of Justice (DOJ) which shall have a Secretariat to be headed by an executive director.All laws. . Persons and matters subject to arbitration. and (f) A representative from the mediation profession.MISCELLANEOUS PROVISIONS SEC. The Joint Oversight Committee shall become functus officio upon approval of the IRR. . study and evaluate the use by the public and the private sector of ADR. and evaluation of government ADR programs. Applicability of the Katarungan Pambarangay. (b) To certify that such ADR practitioners and ADR service providers have undergone the professional training provided by the office. 7160. . SEC. The committee." (d) the president of the Integrated Bar of the Philippines. TO PROVIDE FOR THE APPOINTMENT OF ARBITRATORS AND THE PROCEDURE FOR ARBITRATION IN CIVIL CONTROVERSIES. all other parts or provisions not affected shall thereby continue to remain in full force and effect. 51. Repealing Clause. and the relief sought. to enforce such contract or submission. Controversies or cases not subject to the provisions of this Act. the demand shall be set forth a specific time within which the parties shall agree upon such arbitrator.An arbitration shall be instituted by: (a) In the case of a contract to arbitrate future controversies by the service by either party upon the other of a demand for arbitration in accordance with the contract. a copy of the demand for arbitration under the contract to arbitrate. incidental. The demand shall be served upon any party either in person or by registered mail. Such submission or contract shall be valid. Hearing by court. and upon being satisfied that the making of the agreement or such failure to comply therewith is not in issue. shall make an order directing the parties to proceed to arbitration in accordance with the terms of the agreement. the proceeding shall be dismissed. precedent or subsequent to any issue between the parties. Such submission or contract may include question arising out of valuations. with a notice that the original demand was sent by registered mail or delivered in person to the party against whom the claim is asserted. . of the submission agreement. as amended. the amount involved. enforceable and irrevocable. shall be deemed a consent of the parties to the jurisdiction of the Court of First Instance of the province or city where any of the parties resides. the aggrieved party shall follow the procedure prescribed in subparagraphs (a) and (b) of this section. and the relief sought. one to be selected by each party. .A party aggrieved by the failure. (b) In the event that one party defaults in answering the demand. (d) In the event that one party neglects. Such demand shall be set forth the nature of the controversy. the aggrieved party may file with the Clerk of the Court of First Instance having jurisdiction over the parties. Section 4. providing for arbitration of any controversy. and the amount involved. the objection on the ground of incapacity can be taken only in behalf of the person so incapacitated. Section 6. setting forth the nature of the controversy. together with a true copy of the contract providing for arbitration. or the parties to any contract may in such contract agree to settle by arbitration a controversy thereafter arising between them. . if any. The court shall hear the parties. an order shall be made summarily directing the parties to proceed with the arbitration in accordance with the terms thereof. The court shall decide all motions. Section 3. if any. If the finding be that a written provision for arbitration was made and there is a default in proceeding thereunder. Form of arbitration agreement. such notice shall require that the two arbitrators so appointed must agree upon the third arbitrator within ten days from the date of such notice. fails or refuses to arbitrate under a submission agreement. if any. If the contract between the parties provides for the appointment of three arbitrators. If the making of the agreement or default be in issue the court shall proceed to summarily hear such issue. and shall be accompanied by a true copy of the contract providing for arbitration. . Five days notice in writing of the hearing of such application shall be served either personally or by registered mail upon the party in default. The making of a contract or submission for arbitration described in section two hereof. or a person judicially declared to be incompetent. (c) In the case of the submission of an existing controversy by the filing with the Clerk of the Court of First Instance having jurisdiction. . But where a person capable of entering into a submission or contract has knowingly entered into the same with a person incapable of so doing. Preliminary procedure. and shall require that the party upon whom the demand is made shall within fifteen days after receipt thereof advise in writing the party making such demand of the name of the person appointed by the second party. Section 5. unless the appropriate court having jurisdiction approve 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. the amount involved. If the finding be that no agreement in writing providing for arbitration was made. appraisals or other controversies which may be collateral. A controversy cannot be arbitrated where one of the parties to the controversy is an infant. or by his lawful agent.ADR (based on ATTY HIGUIT’S OUTLINE)-CHARMAGNE FERRER’S REVIEWER 48 arbitration of one or more arbitrators any controversy existing between them at the time of the submission and which may be the subject of an action.This Act shall not apply to controversies and to cases which are subject to the jurisdiction of the Court of Industrial Relations or which have been submitted to it as provided by Commonwealth Act Numbered One hundred and three. In the event that the contract between the parties provides for the appointment of a single arbitrator. neglect or refusal of another to perform under an agreement in writing providing for arbitration may petition the court for an order directing that such arbitration proceed in the manner provided for in such agreement. or that there is no default in the proceeding thereunder. the demand shall name the arbitrator appointed by the party making the demand. save upon such grounds as exist at law for the revocation of any contract. as well as a submission to arbitrate an existing controversy shall be in writing and subscribed by the party sought to be charged.A contract to arbitrate a controversy thereafter arising between the parties. Such submission may be filed by any party and shall be duly executed by both parties. Such demand shall set forth the nature of the controversy. petitions or applications filed under the provisions of this Act. Stay of civil action. a person appointed to serve as an arbitrator shall discover any circumstances likely to create a presumption of bias. Section 8.If. and it shall be continued immediately after the court has delivered an order on the challenging incident. such method shall be followed. or (b) to declare the office of such arbitrator vacant. arbitrator must sit with the original arbitrators upon the hearing. In case of declination or the failure of an arbitrator or arbitrators to duly accept their appointments the parties or the court. adjournment may be ordered by the arbitrators upon their own motion only at the hearing . Section 11. resides.Any person appointed to serve as an arbitrator must be of legal age. If. may select or appoint a person as an additional arbitrator. or within fifteen days after appointment if the parties reside in different provinces. . provision is made for a method of naming or appointing an arbitrator or arbitrators.If any suit or proceeding be brought upon an issue arising out of an agreement providing for the arbitration thereof. The hearing can be postponed or adjourned by the arbitrators only by agreement of the parties. or applications have been heard by it. the hearing or arbitration shall be suspended. shall fail to agree upon or to select the third arbitrator. Qualifications of arbitrators. are arbitrators selected as prescribed herein must. in full-enjoyment of his civil rights and know how to read and write. after appointment but before or during hearing. Such additional No party shall select as an arbitrator any person to act as his champion or to advocate his cause. or appointed by one party to the contract and by the proper Court. Thereafter the parties may agree in writing: (a) to waive the presumptive disqualifying circumstances. any of them. If they do not yield to the challenge. as the case may be. within five days after appointment if the parties to the controversy reside within the same city or province. shall proceed to appoint a substitute or substitutes for the arbitrator or arbitrators who decline or failed to accept his or their appointments. the selection or appointment must be in writing. or which he believes might disqualify him as an impartial arbitrator. Section 12. Section 10.Subject to the terms of the submission or contract. While the challenging incident is discussed before the court. (e) The court shall. otherwise.The arbitrators may be challenged only for the reasons mentioned in the preceding section which may have arisen after the arbitration agreement or were unknown at the time of arbitration. Section 9. . The Court of First Instance shall appoint an arbitrator or arbitrators. Procedure by arbitrators. the challenging party may renew the challenge before the Court of First Instance of the province or city in which the challenged arbitrator. but if no method be provided therein the Court of First Instance shall designate an arbitrator or arbitrators. Challenge of arbitrators. . . or. No person appointed to served as an arbitrator shall be related by blood or marriage within the sixth degree to either party to the controversy. Where a submission or contract provides that two or more arbitrators therein designated or to be thereafter appointed by the parties. in its discretion appoint one or three arbitrators. That the applicant. The challenge shall be made before them. or (d) If the arbitrators appointed by each party to the contract. according to the importance of the controversy involved in any of the preceding cases in which the agreement is silent as to the number of arbitrators. Appointment of additional arbitrators. if there be more than one. and must cause notice thereof to be given to each of the parties. or (c) If either party to the contract fails or refuses to name his arbitrator within fifteen days after receipt of the demand for arbitration. and his successor has not been appointed in the manner in which he was appointed. fiduciary or other interest in the controversy or cause to be decided or in the result of the proceeding. shall stay the action or proceeding until an arbitration has been had in accordance with the terms of the agreement: Provided. Section 7. upon being satisfied that the issue involved in such suit or proceeding is referable to arbitration. in the following instances: (a) If the parties to the contract or submission are unable to agree upon a single arbitrator. No person shall serve as an arbitrator in any proceeding if he has or has had financial. for the stay is not in default in proceeding with such arbitration. or has any personal bias. the arbitrator shall immediately disclose such information to the parties. or (b) If an arbitrator appointed by the parties is unwilling or unable to serve. the court in which such suit or proceeding is pending.ADR (based on ATTY HIGUIT’S OUTLINE)-CHARMAGNE FERRER’S REVIEWER 49 within ten days after such motions. petitions. as the case may be. which might prejudice the right of any party to a fair and impartial award. set a time and place for the hearing of the matters submitted to them. if any are specified therein. . in the contract for arbitration or in the submission described in section two. Appointment of arbitrators. (f) Arbitrators appointed under this section shall either accept or decline their appointments within seven days of the receipt of their appointments. Any such vacancy shall be filled in the same manner as the original appointment was made. . The arbitrators may make an ocular inspection of any matter or premises which are in dispute. Arbitrators shall have the power to administer the oaths to all witnesses requiring them to tell the whole truth and nothing but the truth in any testimony which they may give in any arbitration hearing. the reply briefs.The hearing may be reopened by the arbitrators on their own motion or upon the request of any party. and shall not be bound to conform to the Rules of Court pertaining to evidence. The parties may submit an agreed statement of facts. The arbitrator or arbitrators shall have the power at any time. No adjournment shall extend the hearing beyond the day fixed in the submission or contract for rendering the award. Then the hearing shall be closed by the arbitrations after the receipt of briefs and/or reply briefs. by written agreement. upon the receipt of a negative reply from all parties. The arbitrators shall require the other party to submit such evidence as they may require for making an award. unless any party who shall have received notice thereof fails to appear. . upon good cause. or a practicing attorney-at-law. Arbitrators shall have the power to require any person to attend a hearing as a witness. Parties may also submit a written argument. The arbitrators shall be the sole judge of the relevancy and materiality of the evidence offered or produced. Section 15. but the attendance of any other person shall be at the discretion of the arbitrators. if any.ADR (based on ATTY HIGUIT’S OUTLINE)-CHARMAGNE FERRER’S REVIEWER 50 and for good and sufficient cause. ask both parties for brief statements of the issues in controversy and/or an agreed statement of facts. Subpoena and subpoena duces tecum. . Section 18. Any party desiring to be represented by counsel shall notify the other party or parties of such intention at least five days prior to the hearing. This oath shall be required of every witness before any of his testimony is heard. and when payment of the cost thereof is assumed by such party or parties.Arbitrators may. and shall produce such additional evidence as the arbitrators shall require or deem necessary to an understanding and determination of the dispute. Hearing by arbitrators. The arbitrators shall arrange for the taking of a stenographic record of the testimony when such a record is requested by one or more parties. he .The parties to a submission or contract to arbitrate may. unless the time so fixed is extended by the written agreement of the parties to the submission or contract or their attorneys. Definite time limit for the filing of such briefs must be fixed by the arbitrators at the close of the hearing. submit their dispute to arbitration by other than oral hearing. or a person in the regular employ of such party duly authorized in writing by said party. but if such party fails to do so within seven days after receipt of such statements and proofs. faithfully and fairly to hear and examine the matters in controversy and to make a just award according to the best of their ability and understanding.Before hearing any testimony. this shall include a statement of facts. Persons having a direct interest in the controversy which is the subject of arbitration shall have the right to attend any hearing. Briefs. in which event such inspection shall be made in the absence of such party. All of the arbitrators appointed in any controversy must attend all the hearings in that matter and hear all the allegations and proofs of the parties. shall be filed within five days following such fifteen-day period. Arbitrators shall receive as exhibits in evidence any document which the parties may wish to submit and the exhibits shall be properly identified at the time of submission. or unless the parties have continued with the arbitration without objection to such adjournment. When hearings are thus reopened the effective date for the closing of the hearings shall be the date of the closing of the reopened hearing. They shall have the power to subpoena witnesses and documents when the relevancy of the testimony and the materiality thereof has been demonstrated to the arbitrators. All exhibits shall remain in the custody of the Clerk of Court during the course of the arbitration and shall be returned to the parties at the time the award is made. An award shall not be made solely on the default of a party. after due notice. at the commencement of the hearing. . fails to be present at such hearing or fails to obtain an adjournment thereof. the arbitrators shall declare the hearing closed unless the parties have signified an intention to file briefs. the arbitrators shall specifically inquire of all parties whether they have any further proof or witnesses to present. Section 16. by any officer authorized by law to administer an oath. Proceeding in lieu of hearing. but such inspection shall be made only in the presence of all parties to the arbitration. No one other than a party to said arbitration. Thereafter the parties may offer such evidence as they desire. Section 14. Section 17. Briefs may filed by the parties within fifteen days after the close of the oral hearings. . Arbitrators may also require the retirement of any witness during the testimony of any other witness. Reopening of hearing. but an award by the majority of them is valid unless the concurrence of all of them is expressly required in the submission or contract to arbitrate. shall be permitted by the arbitrators to represent before him or them any party to the arbitration. without prejudice to the rights of any party to petition the court to take measures to safeguard and/or conserve any matter which is the subject of the dispute in arbitration.At the close of the hearings. shown at any time before the award is rendered. Each party shall provide all other parties to the dispute with a copy of all statements and documents submitted to the arbitrators. They may also submit their respective contentions to the duly appointed arbitrators in writing. Section 13. Each party shall have an opportunity to reply in writing to any other party's statements and proofs. arbitrators must be sworn. The hearing may proceed in the absence of any party who. Oath of arbitrators. together with all documentary proof. before rendering the award. ADR (based on ATTY HIGUIT’S OUTLINE)-CHARMAGNE FERRER’S REVIEWER 51 shall be deemed to have waived his right to reply. Upon the delivery to the arbitrators of all statements and documents, together with any reply statements, the arbitrators shall declare the proceedings in lieu of hearing closed. Section 19. Time for rendering award. - Unless the parties shall have stipulated by written agreement the time within which the arbitrators must render their award, the written award of the arbitrators shall be rendered within thirty days after the closing of the hearings or if the oral hearings shall have been waived, within thirty days after the arbitrators shall have declared such proceedings in lieu of hearing closed. This period may be extended by mutual consent of the parties.alf-itc Section 20. Form and contents of award. - The award must be made in writing and signed and acknowledged by a majority of the arbitrators, if more than one; and by the sole arbitrator, if there is only one. Each party shall be furnished with a copy of the award. The arbitrators in their award may grant any remedy or relief which they deem just and equitable and within the scope of the agreement of the parties, which shall include, but not be limited to, the specific performance of a contract. In the event that the parties to an arbitration have, during the course of such arbitration, settled their dispute, they may request of the arbitrators that such settlement be embodied in an award which shall be signed by the arbitrators. No arbitrator shall act as a mediator in any proceeding in which he is acting as arbitrator; and all negotiations towards settlement of the dispute must take place without the presence of the arbitrators. The arbitrators shall have the power to decide only those matters which have been submitted to them. The terms of the award shall be confined to such disputes. The arbitrators shall have the power to assess in their award the expenses of any party against another party, when such assessment shall be deemed necessary. Section 21. Fees of arbitration. - The fees of the arbitrators shall be fifty pesos per day unless the parties agree otherwise in writing prior to the arbitration. Section 22. Arbitration deemed a special proceeding. Arbitration under a contract or submission shall be deemed a special proceeding, of which the court specified in the contract or submission, or if none be specified, the Court of First Instance for the province or city in which one of the parties resides or is doing business, or in which the arbitration was held, shall have jurisdiction. Any application to the court, or a judge thereof, hereunder shall be made in manner provided for the making and hearing of motions, except as otherwise herein expressly provided. 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. Section 24. Grounds for vacating award. - In any one of the following cases, the court must make an order vacating the award upon the petition of any party to the controversy when such party proves affirmatively that in the arbitration proceedings: (a) The award was procured by corruption, fraud, or other undue means; or (b) That there was evident partiality or corruption in the arbitrators or any of them; or (c) That the arbitrators were guilty of misconduct in refusing to postpone the hearing upon sufficient cause shown, or in refusing to hear evidence pertinent and material to the controversy; that one or more of the arbitrators was disqualified to act as such under section nine hereof, and wilfully refrained from disclosing such disqualifications or of any other misbehavior by which the rights of any party have been materially prejudiced; or (d) That the arbitrators exceeded their powers, or so imperfectly executed them, that a mutual, final and definite award upon the subject matter submitted to them was not made. Where an award is vacated, the court, in its discretion, may direct a new hearing either before the same arbitrators or before a new arbitrator or arbitrators to be chosen in the manner provided in the submission or contract for the selection of the original arbitrator or arbitrators, and any provision limiting the time in which the arbitrators may make a decision shall be deemed applicable to the new arbitration and to commence from the date of the court's order. Where the court vacates an award, costs, not exceeding fifty pesos and disbursements may be awarded to the prevailing party and the payment thereof may be enforced in like manner as the payment of costs upon the motion in an action. Section 25. Grounds for modifying or correcting award. - In any one of the following cases, the court must make an order modifying or correcting the award, upon the application of any party to the controversy which was arbitrated: (a) Where there was an evident miscalculation of figures, or an evident mistake in the description of any person, thing or property referred to in the award; or ADR (based on ATTY HIGUIT’S OUTLINE)-CHARMAGNE FERRER’S REVIEWER 52 (b) Where the arbitrators have awarded upon a matter not submitted to them, not affecting the merits of the decision upon the matter submitted; or (c) Where the award is imperfect in a matter of form not affecting the merits of the controversy, and if it had been a commissioner's report, the defect could have been amended or disregarded by the court. The order may modify and correct the award so as to effect the intent thereof and promote justice between the parties. Section 26. Motion to vacate, modify or correct award: when made. - Notice of a motion to vacate, modify or correct the award must be served upon the adverse party or his counsel within thirty days after award is filed or delivered, as prescribed by law for the service upon an attorney in an action. Section 27. Judgment. - Upon the granting of an order confirming, modifying or correcting an award, judgment may be entered in conformity therewith in the court wherein said application was filed. Costs of the application and the proceedings subsequent thereto may be awarded by the court in its discretion. If awarded, the amount thereof must be included in the judgment. 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 arbitrator or arbitrators; and each written extension of the time, if any, within which to make the award. (b) A verified of the award. (c) Each notice, affidavit, or other paper used upon the application to confirm, modify, correct or vacate such award, and a copy of each of the court upon such application. Section 30. Death of party. - Where a party dies after making a submission or a contract to arbitrate as prescribed in this Act, the proceedings may be begun or continued upon the application of, or notice to, his executor or administrator, or temporary administrator of his estate. In any such case, the court may issue an order extending the time within which notice of a motion to confirm, vacate, modify or correct an award must be served. Upon confirming an award, where a party has died since it was filed or delivered, the court must enter judgment in the name of the original party; and the proceedings thereupon are the same as where a party dies after a verdict. Section 31. Repealing clause. - The provisions of chapters one and two, Title XIV, of the Civil Code shall remain in force. All other laws and parts of laws inconsistent with this Act are hereby repealed. If any provision of this Act shall be held invalid the remainder that shall not be affected thereby. Section 32. Effectivity. - This Act shall take effect six months after its approval. 1. A.M. No. 07-11-08-SC SPECIAL RULES OF COURT ON ALTERNATIVE DISPUTE RESOLUTION September 1, 2009 Acting on the recommendation of the Chairperson of the Sub-Committee on the Rules on Alternative Dispute Resolution submitting for this Court’s consideration and approval the proposed Special Rules of Court on Alternative Dispute Resolution, the Court Resolved to APPROVE the same. This Rule shall take effect on October 30, 2009 following its publication in three (3) newspapers of general circulation. SPECIAL RULES OF COURT ON ALTERNATIVE DISPUTE RESOLUTION The judgment shall be docketed as if it were rendered in an action. PART I GENERAL PROVISIONS AND POLICIES The judgment so entered shall have the same force and effect in all respects, as, and be subject to all the provisions relating to, a judgment in an action; and it may be enforced as if it had been rendered in the court in which it is entered. RULE 1: GENERAL PROVISIONS Section 29. Appeals. - An appeal may be taken from an order made in a proceeding under this Act, or from a judgment entered upon an award through certiorari proceedings, but such appeals shall be limited to questions of law. The proceedings upon such an appeal, including the judgment thereon shall be governed by the Rules of Court in so far as they are applicable. Rule 1.1. Subject matter and governing rules.-The Special Rules of Court on Alternative Dispute Resolution (the "Special ADR Rules") shall apply to and govern the following cases: a. Relief on the issue of Existence, Validity, or Enforceability of the Arbitration Agreement; b. Referral to Alternative Dispute Resolution ("ADR"); c. Interim Measures of Protection; ADR (based on ATTY HIGUIT’S OUTLINE)-CHARMAGNE FERRER’S REVIEWER 53 d. Appointment of Arbitrator; e. Challenge to Appointment of Arbitrator; f. Termination of Mandate of Arbitrator; g. Assistance in Taking Evidence; h. Confirmation, Correction or Vacation of Award in Domestic Arbitration; i. Recognition and Enforcement or Setting Aside of an Award in International Commercial Arbitration; j. Recognition and Enforcement of a Foreign Arbitral Award; k. Confidentiality/Protective Orders; and l. Deposit and Enforcement of Mediated Settlement Agreements. Rule 1.2. Nature of the proceedings.-All proceedings under the Special ADR Rules are special proceedings. Rule 1.3. Summary proceedings in certain cases.-The proceedings in the following instances are summary in nature and shall be governed by this provision: a. Judicial Relief Involving the Issue of Existence, Validity or Enforceability of the Arbitration Agreement; b. Referral to ADR; c. Interim Measures of Protection; d. Appointment of Arbitrator; e. Challenge to Appointment of Arbitrator; f. Termination of Mandate of Arbitrator; g. Assistance in Taking Evidence; h. Confidentiality/Protective Orders; and i. Deposit and Enforcement of Mediated Settlement Agreements. (A) Service and filing of petition in summary proceedings.-The petitioner shall serve, either by personal service or courier, a copy of the petition upon the respondent before the filing thereof. Proof of service shall be attached to the petition filed in court. For personal service, proof of service of the petition consists of the affidavit of the person who effected service, stating the time, place and manner of the service on the respondent. For service by courier, proof of service consists of the signed courier proof of delivery. If service is refused or has failed, the affidavit or delivery receipt must state the circumstances of the attempted service and refusal or failure thereof. (B) Notice.-Except for cases involving Referral to ADR and Confidentiality/Protective Orders made through motions, the court shall, if it finds the petition sufficient in form and substance, send notice to the parties directing them to appear at a particular time and date for the hearing thereof which shall be set no later than five (5) days from the lapse of the period for filing the opposition or comment. The notice to the respondent shall contain a statement allowing him to file a comment or opposition to the petition within fifteen (15) days from receipt of the notice. The motion filed pursuant to the rules on Referral to ADR or Confidentiality/Protective Orders shall be set for hearing by the movant and contain a notice of hearing that complies with the requirements under Rule 15 of the Rules of Court on motions. (C) Summary hearing. - In all cases, as far as practicable, the summary hearing shall be conducted in one (1) day and only for purposes of clarifying facts. Except in cases involving Referral to ADR or Confidentiality/Protective Orders made through motions, it shall be the court that sets the petition for hearing within five (5) days from the lapse of the period for filing the opposition or comment. (D) Resolution. - The court shall resolve the matter within a period of thirty (30) days from the day of the hearing. Rule 1.4. Verification and submissions. -Any pleading, motion, opposition, comment, defense or claim filed under the Special ADR Rules by the proper party shall be supported by verified statements that the affiant has read the same and that the factual allegations therein are true and correct of his own personal knowledge or based on authentic records and shall contain as annexes the supporting documents. The annexes to the pleading, motion, opposition, comment, defense or claim filed by the proper party may include a legal brief, duly verified by the lawyer submitting it, stating the pertinent facts, the applicable law and jurisprudence to justify the necessity for the court to rule upon the issue raised. Rule 1.5. Certification Against Forum Shopping. - A Certification Against Forum Shopping is one made under oath made by the petitioner or movant: (a) that he has not theretofore commenced any action or filed any claim involving the same issues in any court, tribunal or quasi-judicial agency and, to the best of his knowledge, no such other action or claim is pending therein; (b) if there is such other pending action or claim, a complete statement of the present status thereof; and (c) if he should thereafter learn that the same or similar action or claim has been filed or is pending, he shall report that fact within five (5) days but is claimed to have been filed personally. motions and other papers in non-summary proceedings. . was not personally served with a copy of the petition and notice of hearing in the proceedings contemplated in the first paragraph of Rule 1. .9. Rule 1. (B) Burden of proof. the method of service resorted to must be such as to reasonably ensure receipt thereof by the respondent to satisfy the requirement of due process. Contents of petition/motion. The court will then cause the initiatory pleading to be served upon the respondent by personal service or courier. as thus computed. Rule 1. Petition for relief from judgment. their addresses. Definition. by the proof of delivery from the courier company. The day of the act that caused the interruption shall be excluded from the computation of the period. or petitions shall not be allowed in the cases governed by the Special ADR Rules and shall not be accepted for filing by the Clerk of Court: a. If the last day of the period.. . d. and h. place and manner of service. the filing shall be proved by the written or stamped acknowledgment of its filing by the clerk of court on a copy of the same. . Any other pleading specifically disallowed under any provision of the Special ADR Rules.The burden of showing that a copy of the petition and the notice of hearing were served on the respondent rests on the petitioner. If the service is by courier.8. i. the necessary allegations supporting the petition and the relief(s) sought. Motion to dismiss. Service and filing of pleadings. A Certification Against Forum Shopping shall be appended to all initiatory pleadings except a Motion to Refer the Dispute to Alternative Dispute Resolution. or by order of the court. If the filing or service of a pleading or motion was done by electronic transmission. The technical rules on service of summons do not apply to the proceedings under the Special ADR Rules. Motion to declare a party in default.A proof of service of the petition and notice of hearing upon respondent shall be made in writing by the server and shall set forth the manner. Where courier services are not available. pleadings. and with instructions to the courier to immediately provide proof of delivery. Where an action is already pending.ADR (based on ATTY HIGUIT’S OUTLINE)-CHARMAGNE FERRER’S REVIEWER 54 therefrom to the court wherein his aforementioned petition or motion has been filed.In computing any period of time prescribed or allowed by the Special ADR Rules. (B) Proof of service. stating facts showing that the document was deposited with the courier company in a sealed envelope. In instances where the respondent. No summons.Filing and service of pleadings by electronic transmission may be allowed by agreement of the parties approved by the court. c. g. (A) Proof of filing. shall include the names of the parties. (A) Proof of service.e. b. e. the time shall not run until the next working day. proof thereof shall consist of an affidavit of the proper person. . Prohibited submissions. with postage fully pre-paid. the day of the act or event from which the designated period of time begins to run is to be excluded and the date of performance included. a court acquires authority to act on the petition or motion upon proof of jurisdictional facts. in the appropriate case where court proceedings have already commenced.11. plainly addressed to the party at his office. if filed by courier. Motion for extension. Motion for bill of particulars.Proof of personal service shall consist of a written admission by the party served. Rule 1. Rule 1.The initiatory pleading in the form of a verified petition or motion. Rule 1. . f. otherwise at his residence.7. . or the official return of the server. If it is not in the record. whether a natural or a juridical person. place and date of service. The court shall motu proprio order a pleading/motion that it has determined to be dilatory in nature be expunged from the records. (C) Filing and service by electronic means and proof thereof. Rejoinder to reply.The initiatory pleadings shall be filed directly with the court. Computation of time.10. or by any applicable statute. .The following pleadings. motions. motions and other papers shall be filed and/or served by the concerned party by personal service or courier. . containing a full statement of the date.6. proof of filing and service shall be made in accordance with the Rules on Electronic Evidence. . that the respondent was furnished a copy of the petition and the notice of hearing. the allowable period after such interruption shall start to run on the day after notice of the cessation of the cause thereof.In cases covered by the Special ADR Rules. or a legal holiday in the place where the court sits.3 (B). resort to registered mail is allowed.The following terms shall have the following meanings: . except in cases where an exparte temporary order of protection has been issued. a Sunday. or the motion in proceedings contemplated in the second paragraph of Rule 1. Rule 1.3 (B). .The filing of a pleading shall be proved by its existence in the record of the case. falls on a Saturday. if known. Motion for new trial or for reopening of trial. Should an act be done which effectively interrupts the running of the period. or the affidavit of the party serving. In ad hoc arbitration.. the court shall resolve such matter summarily and be guided by the spirit and intent of the Special ADR Rules and the ADR Laws.. RULE 2: STATEMENT OF POLICIES Rule 2. the objectives of the Special ADR Rules are to encourage and promote the use of ADR. d. the courts shall not refuse to refer parties to arbitration for reasons including. "ADR Laws" refers to the whole body of ADR laws in the Philippines. that there is sufficient factual basis for the statements of fact stated therein. insofar as it refers to arbitration. or encrypt a record in whole or in part. One or more of the arbitrators are alleged not to possess the required qualification under the arbitration agreement or law.1. particularly arbitration and mediation. as provided herein. g. 9285 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. One or more of the issues are legal and one or more of the arbitrators are not lawyers. b. for any of the following reasons: .ADR (based on ATTY HIGUIT’S OUTLINE)-CHARMAGNE FERRER’S REVIEWER 55 a.It is the policy of the State to actively promote the use of various modes of ADR and to respect party autonomy or the freedom of the parties to make their own arrangements in the resolution of disputes with the greatest cooperation of and the least intervention from the courts. c. curb a litigious culture and to de-clog court dockets.2. The court shall exercise the power of judicial review as provided by these Special ADR Rules.(A) Where the parties have agreed to submit their dispute to arbitration. counterpetitions (i. outlining the facts derived from the factual statements in the witness’s statements of fact and citing the legal authorities relied upon by a party in a case submitted in connection with petitions. e. c. The referral tends to oust a court of its jurisdiction.Part II of the Special ADR Rules on Specific Court Relief. One or more of the arbitrators are not Philippine nationals. b. the following: a. – In situations where no specific rule is provided under the Special ADR Rules. e. Spirit and intent of the Special ADR Rules. that there is sufficient basis in the facts and the law to support the prayer for relief therein. accept or establish the authenticity of a record or term. . impartial justice. or the regular arbitration institution under whose rule the arbitration is agreed to be conducted. Rule 1. they shall be deemed to have agreed to procedure under such arbitration rules for the selection and appointment of arbitrators.e. Where the parties have agreed to submit their dispute to institutional arbitration rules. and that he certifies to the truth of the facts stated therein on the basis of his own personal knowledge or authentic documents in his possession.13. f. Applicability of Part II on Specific Court Relief. or petitions to confirm or to recognize and enforce in opposition to petitions to vacate or set aside and/or correct/modify). evidentiary issues and other matters that arise during the course of a case. "Authenticate" means to sign. . d.12. "Appointing Authority" shall mean the person or institution named in the arbitration agreement as the appointing authority. Rule 1. "Legal Brief" is a written legal argument submitted to a court. intended to identify the authenticating party and to adopt. The place of arbitration is in a foreign country. or h. The arbitration proceeding has not commenced. The court is in a better position to resolve the dispute subject of arbitration. To this end. petitions to vacate or to set aside and/or to correct/modify in opposition to petitions to confirm or to recognize and enforce. shall also be applicable to other forms of ADR. as an important means to achieve speedy and efficient resolution of disputes. and unless they have agreed to a different procedure. motions. the default appointment of arbitrators shall be made by the National President of the Integrated Bar of the Philippines or his duly authorized representative. The referral would result in multiplicity of suits. "Foreign Arbitral Award" is one made in a country other than the Philippines. and that the pleading/motion is filed in good faith and is not interposed for delay. Courts shall intervene only in the cases allowed by law or these Special ADR Rules. but not limited to. f. Policy on arbitration. The legal brief shall state the applicable law and the relevant jurisprudence and the legal arguments in support of a party’s position in the case. verification shall mean a statement under oath by a lawyer signing a pleading/motion for delivery to the Court or to the parties that he personally prepared the pleading/motion. courts shall not refuse to grant relief. (B) Where court intervention is allowed under ADR Laws or the Special ADR Rules. courts shall refer the parties to arbitration pursuant to Republic Act No. General policies. Further. Rule 2. "Verification" shall mean a certification under oath by a party or a person who has authority to act for a party that he has read the pleading/motion. execute or use a symbol. When made by a lawyer. Rule 3. When judicial relief is available. unenforceable or inexistent. under this policy of judicial restraint. the arbitral tribunal may conduct arbitration in the manner it considers appropriate. validity and/or enforceability of an arbitration agreement may be filed at any time prior to the commencement of arbitration. A. Rule 2. Grounds. validity and enforceability of an arbitration agreement may be filed before the Regional Trial Court of the place where any of the petitioners or respondents has his principal place of business or residence. When a court is asked to rule upon issue/s affecting the competence or jurisdiction of an arbitral tribunal in a dispute brought before it.A petition may be granted only if it is shown that the arbitration agreement is. . The principal action is already pending before an arbitral tribunal.4. Rules governing arbitral proceedings. 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. the court must suspend the action before it and refer the parties to arbitration pursuant to the arbitration agreement. concludes that the arbitration agreement is null and void. whether resorted to before or after commencement of arbitration.3. .A petition questioning the existence. . validity and enforceability of such arbitration agreement serving a copy thereof on the respondent in accordance with Rule 1. Venue. or b. arbitral proceedings may nevertheless be commenced and continue to the rendition of an award. Despite the pendency of the petition provided herein. . inoperative or incapable of being performed. 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. Where the court is asked to make a determination of whether the arbitration agreement is null and void. Rule 2. Failing such agreement. while the issue is pending before the court. inoperative or incapable of being performed. which means that said clause shall be treated as an agreement independent of the other terms of the contract of which it forms part.The Special ADR Rules do not apply to Court-Annexed Mediation. . which means that the arbitral tribunal may initially rule on its own jurisdiction. Rule 2. .ADR (based on ATTY HIGUIT’S OUTLINE)-CHARMAGNE FERRER’S REVIEWER 56 a. Rule 3. either before or after the arbitral tribunal is constituted. Conversely. including any objection with respect to the existence or validity of the arbitration agreement.Any party to an arbitration agreement may petition the appropriate court to determine any question concerning the existence.7. and all negotiations towards settlement of the dispute must take place without the presence of that arbitrator. the court must make no more than a prima facie determination of that issue. Policy on Arbitration-Mediation or Mediation-Arbitration.2. no mediator shall act as arbitrator in any proceeding in which he acted as mediator. . pursuant to such prima facie determination. The Special ADR Rules recognize the principle of separability of the arbitration clause. under the applicable law.The judicial relief provided in Rule 3. Where the parties have agreed to submit their dispute to mediation. Rule 3. a court before which that dispute was brought shall suspend the proceedings and direct the parties to submit their dispute to private mediation. Who may file petition.5.5.4 (A). If the parties subsequently agree. invalid. Policy on mediation. Unless the court. When the petition may be filed. The Special ADR Rules recognize the principle of competence-competence.The parties are free to agree on the procedure to be followed in the conduct of arbitral proceedings. . Judicial Relief before Commencement of Arbitration Rule 3. void. Prior to the constitution of the arbitral tribunal. Conversion of a settlement agreement to an arbitral award. shall apply only when the place of arbitration is in the Philippines. Policy implementing competencecompetence principle.6. PART II SPECIFIC COURT RELIEF RULE 3: JUDICIAL RELIEF INVOLVING THE ISSUE OF EXISTENCE. the sole arbitrator shall issue the settlement agreement as an arbitral award. Rule 2.4. the court finds that the principal action is the subject of an arbitration agreement.1.The arbitral tribunal shall be accorded the first opportunity or competence to rule on the issue of whether or not it has the competence or jurisdiction to decide a dispute submitted to it for decision.3.No arbitrator shall act as a mediator in any proceeding in which he is acting as arbitrator.The petition for judicial determination of the existence. however. which shall be subject to enforcement under the law. . which shall be governed by issuances of the Supreme Court.Where the parties to mediation have agreed in the written settlement agreement that the mediator shall become the sole arbitrator for the dispute or that the settlement agreement shall become an arbitral award. . Rule 2. VALIDITY AND ENFORCEABILITY OF THE ARBITRATION AGREEMENT Rule 3. A decision that the contract is null and void shall not entail ipso jure the invalidity of the arbitration clause. . they may opt to have their dispute settled through Court-Annexed Mediation. -A prima facie determination by the court upholding the existence. b. and d.13. prejudice the right of any party to raise the issue of the existence. Contents of petition.6. the petitioner shall attach to the petition a copy of the request for arbitration and the ruling of the arbitral tribunal. Rule 3. The grounds and the circumstances relied upon by the petitioner.8. if any. Venue. the parties shall be free to replace the arbitrators or any one of them in accordance with the rules that were applicable for the appointment of arbitrator sought to be replaced. . Rule 3.If the petitioner also applies for an interim measure of protection.The petition may be filed within thirty (30) days after having received notice of that ruling by the arbitral tribunal.14. Court action. Court action. . deferring to the competence or jurisdiction of the arbitral tribunal to rule on its competence or jurisdiction. Rule 3. The grounds and the circumstances relied upon by the petitioner to establish his position. In addition to the submissions. he must also comply with the requirements of the Special ADR Rules for the application for an interim measure of protection. Judicial Relief after Arbitration Commences Rule 3. Rule 3. however. Rule 3. appeal or certiorari. the court’s review of the arbitral tribunal’s ruling upholding the existence. The relief/s sought.The court shall render judgment on the basis of the pleadings filed and the evidence. Such prima facie determination will not.12. .The court shall not enjoin the arbitration proceedings during the pendency of the petition.-The comment/opposition of the respondent must be filed within fifteen (15) days from service of the petition. The arbitrators shall be impleaded as nominal parties to the case and shall be notified of the progress of the case. Rule 3.18. but shall be a full review of such issue or issues with due regard. The nature and substance of the dispute between the parties. .In resolving the petition. submitted by the parties. The nature and substance of the dispute between the parties.ADR (based on ATTY HIGUIT’S OUTLINE)-CHARMAGNE FERRER’S REVIEWER 57 Rule 3. . No forum shopping. . Who may file petition. (B) No injunction of arbitration proceedings. Rule 3. and d. validity or enforceability of the arbitration agreement shall no longer be limited to a mere prima facie determination of such issue or issues as prescribed in this Rule.Any party to arbitration may petition the appropriate court for judicial relief from the ruling of the arbitral tribunal on a preliminary question upholding or declining its jurisdiction. or where any of the petitioners or respondents has his principal place of business or residence. When petition may be filed.7.A petition for judicial relief under this Rule may not be commenced when the existence. B. .The petition shall state the following: a. Application for interim relief.The petition may be filed before the Regional Trial Court of the place where arbitration is taking place. Rule 3. within thirty (30) days from the time the petition is submitted for resolution. . ..The petition may be granted when the court finds that the arbitration agreement is invalid.10.The verified petition shall state the following: a.The comment/opposition must be filed within fifteen (15) days from service of the petition. the court must exercise judicial restraint in accordance with the policy set forth in Rule 2. . .(A) Period for resolving the petition.Where there is a prima facie determination upholding the arbitration agreement. however. The facts showing that the person named as petitioner or respondent has legal capacity to sue or be sued. c. The facts showing that the persons named as petitioner or respondent have legal capacity to sue or be sued. Comment/Opposition. In the latter case. to the standard for review for arbitral awards prescribed in these Special ADR Rules.11. Rule 3. validity or enforceability of an arbitration agreement has been raised as one of the issues in a prior action before the same or another court. Relief against court action.4. inexistent or unenforceable as a result of which the arbitral tribunal has no jurisdiction to resolve the dispute.17. . Comment/Opposition. the petitioner must attach to the petition an authentic copy of the arbitration agreement. The relief/s sought. validity or enforceability of an arbitration agreement shall not be subject to a motion for reconsideration.9. Grounds. Rule 3. validity and enforceability of the arbitration agreement before the arbitral tribunal or the court in an action to vacate or set aside the arbitral award. Rule 3. . b. Apart from other submissions.15.16. . c. Contents of petition. Should the ruling of the arbitral tribunal declining its jurisdiction be reversed by the court. Multiple actions and parties. . . Relief against court action. refer the parties to arbitration if it finds prima facie. (C) When dismissal of petition is appropriate. may request the court to refer the parties to arbitration in accordance with such agreement.(A) Where the arbitration agreement exists before the action is filed.4. which shall state that the dispute is covered by an arbitration agreement.5. appeal or certiorari. The dismissal shall be without prejudice to the right of the aggrieved party to raise the same issue in a timely petition to vacate or set aside the award. The decision of the court shall. .6. RULE 4: REFERRAL TO ADR Rule 4. Contents of request.Where the arbitral tribunal defers its ruling on preliminary question regarding its jurisdiction until its final award. that there is an arbitration agreement and that the subject-matter of the dispute is capable of settlement or resolution by arbitration in accordance with Section 6 of the ADR Act.The request for referral shall be in the form of a motion. . The comment/opposition should show that: (a) there is no agreement to refer the dispute to arbitration. that petition shall become ipso facto moot and academic and shall be dismissed by the Regional Trial Court. Apart from other submissions. . Rule 4. When to make request.If the arbitral tribunal renders a final arbitral award and the Court has not rendered a decision on the petition from the arbitral tribunal’s preliminary ruling affirming its jurisdiction.20. Rule 4. . based on the pleadings and supporting documents submitted by the parties.The aggrieved party may file a motion for reconsideration of the order of the court. whether contained in an arbitration clause or in a submission agreement. Rule 3. . however. and/or (c) the subject-matter of the dispute is not capable of settlement or resolution by arbitration in accordance with Section 6 of the ADR Act. but only as nominal parties thereto. The request shall contain a notice of hearing addressed to all parties specifying the date and time when it would be heard. but may be the subject of a motion for reconsideration and/or a petition for certiorari. Rule 3. Court action. and/or (b) the agreement is null and void. Rendition of arbitral award before court decision on petition from arbitral tribunal’s preliminary ruling on jurisdiction. the petition does not appear to be prima facie meritorious. Rule 4. Rule 4. An order denying the request to refer the dispute to arbitration shall not be subject to an appeal. . Rule 3. the aggrieved party cannot seek judicial relief to question the deferral and must await the final arbitral award before seeking appropriate judicial recourse. No reconsideration.21.7. The party making the request shall serve it upon the respondent to give him the opportunity to file a comment or opposition as provided in the immediately succeeding Rule before the hearing. appeal or petition for certiorari.22. The court shall not require the arbitral tribunal to submit any pleadings or written submissions but may consider the same should the latter participate in the proceedings. (B) Submission agreement. considering the statement of policy embodied in Rule 2.2. shall not be subject to a motion for reconsideration. After the pre-trial conference.An order referring the dispute to arbitration shall be immediately executory and shall not be subject to a motion for reconsideration. Where no petition is allowed. . they may request the court to refer their dispute to arbitration at any time during the proceedings. The request for referral shall be made not later than the pre-trial conference.1.3. the movant shall attach to his motion an authentic copy of the arbitration agreement. . the court will only act upon the request for referral if it is made with the agreement of all parties to the case. Comment/Opposition. not be subject to appeal. Not all of the disputes subject of the civil action may be referred to arbitration.4.The court shall dismiss the petition if it fails to comply with Rule 3. . Rule 4.A party to a pending action filed in violation of the arbitration agreement.The court shall not decline to refer some or all of the parties to arbitration for any of the following reasons: a.The comment/opposition must be filed within fifteen (15) days from service of the petition. . Arbitral tribunal a nominal party. above. Otherwise.ADR (based on ATTY HIGUIT’S OUTLINE)-CHARMAGNE FERRER’S REVIEWER 58 Judicial recourse to the court shall not prevent the arbitral tribunal from continuing the proceedings and rendering its award.16 above. . Rule 3. The ruling of the court affirming the arbitral tribunal’s jurisdiction shall not be subject to a petition for certiorari.The arbitral tribunal is only a nominal party.If there is no existing arbitration agreement at the time the case is filed but the parties subsequently enter into an arbitration agreement. A ruling by the arbitral tribunal deferring resolution on the issue of its jurisdiction until final award. Who makes the request. Rule 4.19. or if upon consideration of the grounds alleged and the legal briefs submitted by the parties. the court shall continue with the judicial proceedings.After hearing. . the court shall stay the action and. The ruling of the court that the arbitral tribunal has no jurisdiction may be the subject of a petition for certiorari. appeal or a petition for certiorari. .A petition for an interim measure of protection may be filed with the Regional Trial Court. e. . Preliminary injunction directed against a party to arbitration.The following grounds. c. arbitral proceedings may nevertheless be commenced or continued. Where the principal place of business of any of the parties to arbitration is located.1. or d. RULE 5: INTERIM MEASURES OF PROTECTION d. 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. c. The issues raised in the civil action could be speedily and efficiently resolved in its entirety by the court rather than in arbitration. Rule 5. . . . (b) prevent the respondent from disposing of. delivery or inspection of property.5.8. The need to produce or preserve evidence.The verified petition must state the following: a. Grounds. Where any of the acts sought to be enjoined are being performed.6.1. Arbitration to proceed. Where the real property subject of arbitration. Rule 4. Preliminary attachment against property or garnishment of funds in the custody of a bank or a third person. Apart from other submissions. b. which the latter cannot enforce effectively. Rule 5. b. which has jurisdiction over any of the following places: a. or e. and an award may be made. indicate the nature of the a. The fact that there is an arbitration agreement. however. but before the constitution of the arbitral tribunal. or. are the interim measures of protection that a court may grant: Rule 5. Rule 5. or d. c. Assistance in the enforcement of an interim measure of protection granted by the arbitral tribunal. only to the extent that the arbitral tribunal has no power to act or is unable to act effectively. among others.A petition for an interim measure of protection may be made (a) before arbitration is commenced. . the petitioner must attach to his petition an authentic copy of the arbitration agreement. . while the action is pending before the court. preservation. Contents of the petition. The grounds relied on for the allowance of the petition Rule 5. The fact that the arbitral tribunal has not been constituted.2. Rule 5. d. Referral to arbitration does not appear to be the most prudent action. d. or (c) prevent the relief prayed for from becoming illusory because of prior notice. (b) after arbitration is commenced. Venue. or a portion thereof is situated.3. or (c) after the constitution of the arbitral tribunal and at any time during arbitral proceedings but. Rule 5.. c. the property. while not limiting the reasons for the court to grant an interim measure of protection.Despite the pendency of the action referred to in Rule 4. The need to provide security for the performance of any obligation. issue an order directing the inclusion in arbitration of those parties who are not bound by the arbitration agreement but who agree to such inclusion provided those originally bound by it do not object to their inclusion. reasons that the court shall consider in granting the relief: a. at this stage. The need to prevent irreparable loss or injury. . threatened to be performed or not being performed. Where any of the parties who are individuals resides. Who may ask for interim measures of protection.A party to an arbitration agreement may petition the court for interim measures of protection. or if constituted. The need to compel any other appropriate act or omission. and the court finds that the reason/s given by the petitioner are meritorious. above.ADR (based on ATTY HIGUIT’S OUTLINE)-CHARMAGNE FERRER’S REVIEWER 59 b. The stay of the action would prejudice the rights of the parties to the civil action who are not bound by the arbitration agreement. or concealing. A detailed description of the appropriate relief sought. Detention. c. When to petition.7. b.The following.4. b. is unable to act or would be unable to act effectively. Appointment of a receiver. Dispensing with prior notice in certain cases.Prior notice to the other party may be dispensed with when the petitioner alleges in the petition that there is an urgent need to either (a) preserve property. The court may. Type of interim measure of protection that a court may grant. (b) prevent the respondent from disposing of. amendment. revision or revocation by an arbitral tribunal. the court shall motu proprio render judgment only on the basis of the allegations in the petition that are substantiated by supporting documents and limited to what is prayed for therein. If it finds that there is sufficient merit in the opposition to the application based on letter (b) above. The respondent has the option of having the temporary order of protection lifted by posting an appropriate counter-bond as determined by the court. The exparte temporary order of protection shall be valid only for a period of twenty (20) days from the service on the party required to comply with the order. Furnish the respondent a copy of the petition and a notice requiring him to comment thereon on or before the day the petition will be heard. .The court shall not deny an application for assistance in implementing or enforcing an interim measure of protection ordered by an arbitral tribunal on any or all of the following grounds: a. the court shall refer the matter back to the arbitral tribunal for appropriate determination. or b. but may be the subject of a motion for reconsideration and/or appeal or. The party opposing the application found new material evidence. . Court action. the property. Relief against court action. . If the respondent requests the court for an extension of the period to file his opposition or comment or to reset the hearing to a later date. Notify the parties that the petition shall be heard on a day specified in the notice.13. and such request is granted.11. If the other parties fail to file their opposition on or before the day of the hearing. which must not be beyond the twenty (20) day period of the effectivity of the exparte order. and on that basis resolve the matter within thirty (30) days from (a) submission of the opposition. revokes. based solely on the petition. revision or revocation of court’s previously issued interim measure of protection. or concealing.The order granting an interim measure of protection may be conditioned upon the provision of security.If respondent was given an opportunity to be heard on a petition for an interim measure of protection. In cases where.10. Duty of the court to refer back. or omission thereof. the court shall: a. Rule 5. Rule 5. revision or revocation by the arbitral tribunal as may be warranted. amended. to post a bond to answer for any damage that respondent may suffer as a result of its order. An interim measure of protection issued by the arbitral tribunal shall. . Rule 5. modification.After hearing the petition. Rule 5. Rule 5. Security. performance of an act. if warranted. revised or revoked an interim measure of protection previously issued by the court to the extent that it is inconsistent with the subsequent interim measure of protection issued by the arbitral tribunal.ADR (based on ATTY HIGUIT’S OUTLINE)-CHARMAGNE FERRER’S REVIEWER 60 Rule 5. . After notice and hearing. the court may either grant or deny the petition for an interim measure of protection.12. within five (5) days from receipt of that order. amendment. or (c) prevent the relief prayed for from becoming illusory because of prior notice. may produce a different result. modification. The opposition or comment should state the reasons why the interim measure of protection should not be granted.The comment/opposition must be filed within fifteen (15) days from service of the petition. and which. Modification. The order granting or denying any application for interim measure of protection in aid of arbitration must indicate that it is issued without prejudice to subsequent grant. . Within that period.Any question involving a conflict or inconsistency between an interim measure of protection issued by the court and by the arbitral tribunal shall be immediately referred by the court to the arbitral tribunal which shall have the authority to decide such question. .14. upon its issuance be deemed to have ipso jure modified. The measure of protection ordered by the arbitral tribunal amends. or c. or (b) upon lapse of the period to file the same. Rule 5. modifies or is inconsistent with an earlier measure of protection issued by the court. a petition for certiorari. Conflict or inconsistency between interim measure of protection issued by the court and by the arbitral tribunal. . The Court may not change or increase or decrease the security ordered by the arbitral tribunal. amendment.8. if considered. specified in the order. Comment/Opposition. and b.9. The arbitral tribunal granted the interim relief ex parte.Any court order granting or denying interim measure/s of protection is issued without prejudice to subsequent grant. the court shall balance the relative interests of the parties and inconveniences that may be caused. or (c) from termination of the hearing that the court may set only if there is a need for clarification or further argument. the court finds that there is an urgent need to either (a) preserve property. which the arbitral tribunal had not considered in granting in the application. it shall issue an immediately executory temporary order of protection and require the petitioner. any order by the court shall be immediately executory. the court shall extend the period of validity of the exparte temporary order of protection for no more than twenty days from expiration of the original period. The court may act upon such petition only if it is established by the petitioner that the arbitral tribunal has no power to act on any such interim measure of protection or is unable to act thereon effectively. Contents of the petition.The court shall act as Appointing Authority only in the following instances: a. Court assistance should arbitral tribunal be unable to effectively enforce interim measure of protection. also require each party to submit a list of not less than three (3) proposed arbitrators together with their curriculum vitae. and the National President of the Integrated Bar of the Philippines (IBP) or his duly authorized representative fails or refuses to act within such period as may be allowed under the pertinent rules of the IBP or within such period as may be agreed upon by the parties. b. or in the absence thereof. if the court finds merit in the petition. and the institution under whose rules arbitration is to be conducted fails or is unable to perform its duty as appointing authority within a reasonable time from receipt of the request for appointment. or failure of. Submission of list of arbitrators.After hearing. that were agreed upon by the parties. in the Regional Trial Court (a) where the principal place of business of any of the parties is located. . The number of arbitrators agreed upon or the absence of any agreement as to the number of arbitrators. The general nature of the dispute. Rule 6.1 above.16. Venue. otherwise. within a reasonable time. When the court may act as Appointing Authority.The petition for appointment of arbitrator may be filed. the court shall have regard to such considerations as are likely to secure the appointment of an independent and impartial arbitrator. Rule 6.The comment/opposition must be filed within fifteen (15) days from service of the petition. c. and (b) proof that the Appointing Authority has been notified of the filing of the petition for appointment with the court. In making the appointment. within thirty (30) days from receipt of such request for appointment. and f. . . .5.2.15. Rule 6. or substitute arbitrator.Any party to an arbitration may request the court to act as an Appointing Authority in the instances specified in Rule 6. it shall appoint an arbitrator. . at its option. a description of that procedure with reference to the agreement where such may be found. Rule 6. from the date a request is made. at the option of the petitioner. b. Where any of the parties in an institutional arbitration failed or refused to appoint an arbitrator or when the parties have failed to reach an agreement on the sole arbitrator (in an arbitration before a sole arbitrator) or when the two designated arbitrators have failed to reach an agreement on the third or presiding arbitrator (in an arbitration before a panel of three arbitrators). -The petition shall state the following: a. the petitioner must attach to the petition (a) an authentic copy of the arbitration agreement. Rule 5. . without justifiable cause. the appointment of the arbitrator. Rule 6.7. Apart from other submissions.The court shall assist in the enforcement of an interim measure of protection issued by the arbitral tribunal which it is unable to effectively enforce. the appointment shall be made by the Appointing Authority. Court action. e. or the method agreed upon is ineffective. If a party fails to appoint his arbitrator within thirty (30) days of receipt of a request to do so from the other party. Who may request for appointment. The petitioner is not the cause of the delay in.The court may. RULE 6: APPOINTMENT OF ARBITRATORS Rule 6. each party shall appoint one arbitrator and the two arbitrators thus appointed shall appoint a third arbitrator. or if the two arbitrators fail to agree on the third arbitrator within a reasonable time from their appointment. The fact that the Appointing Authority. Court to defer action on petition for an interim measure of protection when informed of constitution of the arbitral tribunal. If the parties agreed on an appointment procedure. has failed or refused to act as such within the time prescribed or in the absence thereof. In all instances where arbitration is ad hoc and the parties failed to provide a method for appointing or replacing an arbitrator. it shall dismiss the petition. Rule 6. if any.6. .4. If the latter fails or refuses to act or appoint an arbitrator within a reasonable time from receipt of the request to do so. The special qualifications that the arbitrator/s must possess.1. c. Where the parties agreed that their dispute shall be resolved by three arbitrators but no method of appointing those arbitrators has been agreed upon. d. where those individuals reside. Comment/Opposition.ADR (based on ATTY HIGUIT’S OUTLINE)-CHARMAGNE FERRER’S REVIEWER 61 Rule 5. (b) if any of the parties are individuals. . . any party or the appointed arbitrator/s may request the court to appoint an arbitrator or the third arbitrator as the case may be.The court shall defer action on any pending petition for an interim measure of protection filed by a party to an arbitration agreement arising from or in connection with a dispute thereunder upon being informed that an arbitral tribunal has been constituted pursuant to such agreement.3. or (c) in the National Capital Region. a. 9285 and its implementing rules. the aggrieved party may request the Appointing Authority to rule on the challenge. . Venue. The court shall allow the challenged arbitrator who subsequently agrees to accept the challenge to withdraw as arbitrator.1. otherwise. or in such comment or legal brief. c. RULE 7: CHALLENGE TO APPOINTMENT OF ARBITRATOR Rule 7. on account of which the respondent failed or refused to participate in the selection and appointment of a sole arbitrator or to appoint a partynominated arbitrator.4. .7. and . or (c) in the National Capital Region.2.6. . and Rule 7. . appeal or certiorari. If the challenged arbitrator fails or refuses to submit his comment on the petition or the brief of legal arguments as directed by the court. Forum shopping prohibited. however. The court shall decide the challenge on the basis of evidence submitted by the parties. The other arbitrators in the arbitral tribunal agree to the removal of the challenged arbitrator.If the court appoints an arbitrator. Grounds. he fails to object to his removal following the challenge. he fails to object to his removal following the challenge. Rule 7.ADR (based on ATTY HIGUIT’S OUTLINE)-CHARMAGNE FERRER’S REVIEWER 62 At any time after the petition is filed and before the court makes an appointment.Any of the parties to an arbitration may challenge an arbitrator. invalid. Contents of the petition. The court shall dismiss the petition motu proprio unless it is clearly alleged therein that the Appointing Authority charged with deciding the challenge. or in such comment or brief of legal arguments. appeal or certiorari.The challenged arbitrator or other parties may file a comment or opposition within fifteen (15) days from service of the petition. Rule 7. the petition filed under this rule shall be dismissed. it shall dismiss the petition.3. be the subject of a motion for reconsideration. Rule 6. An order of the court denying the petition for appointment of an arbitrator may. Who may challenge. . .9. b. within thirty (30) days from receipt of the request. Rule 6. Rule 7. and it is only when such Appointing Authority fails or refuses to act on the challenge within such period as may be allowed under the applicable rule or in the absence thereof. . Relief against court action.The petition shall state the following: b. and d. 876 or the Model Law.The challenge shall be filed with the Regional Trial Court (a) where the principal place of business of any of the parties is located. Court action. The other arbitrators in the arbitral tribunal agree to the removal of the challenged arbitrator. unenforceable. the order appointing an arbitrator shall be immediately executory and shall not be the subject of a motion for reconsideration. When challenge may be raised in court. after the resolution of the arbitral tribunal rejecting the challenge is raised or contested before such Appointing Authority. The facts showing that the Appointing Authority failed or refused to act on the challenge.After hearing.An arbitrator may be challenged on any of the grounds for challenge provided for in Republic Act No.When there is a pending petition in another court to declare the arbitration agreement inexistent. The nationality or professional qualification of an arbitrator is not a ground to challenge an arbitrator unless the parties have specified in their arbitration agreement a nationality and/or professional qualification for appointment as arbitrator. The court shall accept the challenge and remove the arbitrator in the following cases: a. where those individuals reside. failed or refused to act on the challenge within thirty (30) days from receipt of the request or within such longer period as may apply or as may have been agreed upon by the parties. The grounds for the challenge. When an arbitrator is challenged before the arbitral tribunal under the procedure agreed upon by the parties or under the procedure provided for in Article 13 (2) of the Model Law and the challenge is not successful. The court will decide the challenge on the basis of the evidence submitted by the parties in the following instances: a. c. The party or parties who named and appointed the challenged arbitrator agree to the challenge and withdraw the appointment. the court shall remove the challenged arbitrator if it finds merit in the petition. The name/s of the arbitrator/s challenged and his/their address. The facts showing that the ground for the challenge has been expressly or impliedly rejected by the challenged arbitrator/s. Republic Act No. b.5. . Rule 7. Comment/Opposition. that the aggrieved party may renew the challenge in court.8. The challenged arbitrator fails or refuses to submit his comment on the petition or the brief of legal arguments as directed by the court. (b) if any of the parties are individuals. it shall also dismiss the petition upon being informed that the Appointing Authority has already made the appointment. Rule 7. b. which may consist of air tickets. a substitute arbitrator shall be appointed according to the rules that were applicable to the appointment of the arbitrator being replaced.A petition to terminate the mandate of an arbitrator may.Any party to an arbitration. The court. fails or refuses to withdraw from his office.Any order of the court resolving the petition shall be immediately executory and shall not be the subject of a motion for reconsideration.Assistance may be sought at any time during the course of the arbitral proceedings when the need arises. in default of which the court may issue a writ of execution to enforce the award. The fact that one or all of the parties requested the Appointing Authority to act on the request for the termination of the mandate of the arbitrator and failure or inability of the Appointing Authority to act within thirty (30) days from the request of a party or parties or within such period as may have been agreed upon by the parties or allowed under the applicable rule.3. Rule 7. d.2. A reasonable compensation shall be paid to the challenged arbitrator on the basis of the length of time he has devoted to the arbitration and taking into consideration his stature and reputation as an arbitrator. Rule 8. in the absence thereof.If an arbitrator refuses to withdraw from his office. appeal. . . if the court finds merit in the petition. Venue. The fact that one or all of the parties had requested the arbitrator to withdraw but he failed or refused to do so. it shall dismiss the petition.8.1. Any order of the court resolving the petition shall be immediately executory and shall not be subject of a motion for reconsideration. Rule 9. No motion for reconsideration or appeal. it shall terminate the mandate of the arbitrator who refuses to withdraw from his office. Rule 8. hotel bills and expenses. .9. (b) the witnesses reside . transportation and hotel expenses. No motion for reconsideration. The ground/s for termination. be filed with the Regional Trial Court (a) where the principal place of business of any of the parties is located. shall receive evidence of expenses to be reimbursed. When to request.5. and inland transportation.A petition for assistance in taking evidence may.2. otherwise. (b) where any of the parties who are individuals resides. Reimbursement of expenses and reasonable compensation to challenged arbitrator. or certiorari. or (c) in the National Capital Region.ADR (based on ATTY HIGUIT’S OUTLINE)-CHARMAGNE FERRER’S REVIEWER 63 Rule 7. upon request of any party.The petition shall state the following: a.7. Comment/Opposition. . Appointment of substitute arbitrator. RULE 9: ASSISTANCE IN TAKING EVIDENCE Rule 9. Who may request assistance. .8. . c. . Rule 9. at the option of the petitioner. Contents of the petition. the challenged arbitrator shall be entitled to reimbursement of all reasonable expenses he may have incurred in attending to the arbitration and to a reasonable compensation for his work on the arbitration. at that petitioner’s option. Rule 8. or he withdraws from office for any other reason. . Such expenses include.Unless the bad faith of the challenged arbitrator is established with reasonable certainty by concealing or failing to disclose a ground for his disqualification. Who may request termination and on what grounds.6. . The petitioner shall further allege that one or all of the parties had requested the arbitrator to withdraw but he failed or refused to do so. Court action.1. The court shall direct the challenging party to pay the amount of the award to the court for the account of the challenged arbitrator. may request the court to provide assistance in taking evidence. but shall not be limited to. The name of the arbitrator whose mandate is sought to be terminated.After hearing. and subsequently.Any of the parties to an arbitration may request for the termination of the mandate of an arbitrator where an arbitrator becomes de jure or de facto unable to perform his function or for other reasons fails to act without undue delay and that arbitrator. RULE 8: TERMINATION OF THE MANDATE OF ARBITRATOR Rule 8.. be filed with Regional Trial Court where (a) arbitration proceedings are taking place. or because of his mandate is revoked by agreement of the parties or is terminated for any other reason. The request for reimbursement of expenses and for payment of a reasonable compensation shall be filed in the same case and in the court where the petition to replace the challenged arbitrator was filed. Rule 8. in determining the amount of the award to the challenged arbitrator.The comment/opposition must be filed within fifteen (15) days from service of the petition. Rule 8. When assistance may be sought. Rule 8. 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. Rule 8. . any party may file with the court a petition to terminate the mandate of that arbitrator.4. within thirty (30) days from the time the request is brought before him. appeal or certiorari. if any. Where the mandate of an arbitrator is terminated. whether domestic or foreign.3. appeal or petition for certiorari. Venue. Type of assistance. things or premises (i. Court action. c.The court may grant or execute the request for assistance in taking evidence within its competence and according to the rules of evidence. . To allow the examination and copying of documents.9. . The names and addresses of the intended witness/es.2. . and e. Who may request confidentiality.1.10. or to be obtained. Rule 9.3. . during an ADR proceeding. b. To allow the physical examination of the condition of persons.11. If the court declines to grant assistance in taking evidence. Rule 10. 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 petition or motion must state the following: a. on behalf of the source. Ground. 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.5.A petition for a protective order may be filed with the Regional Trial Court where that order would be implemented.A party may request a protective order at anytime there is a need to enforce the confidentiality of the information obtained. Rule 10. To perform any similar acts. . in ADR proceedings. Rule 10.7. or to be obtained. and is material and relevant. .5. To comply with a subpoena ad testificandum and/or subpoena duces tecum. Rule 9. video and other means of recording/documentation).If the evidence sought is not privileged. Rule 9. Contents of the motion or petition. . association. place where the evidence may be found. for any of the following: Rule 9. or (c) where the evidence may be found.The petition must state the following: a.4. . Venue. . That the information sought to be protected was obtained.e. including a representative of a corporation. . To appear as a witness before an officer for the taking of his deposition upon oral examination or by written interrogatories. When request made. to allow the recording and/or documentation of condition of persons. and d. Rule 9.At anytime before arbitration is commenced or before the arbitral tribunal is constituted. Rule 9. . or the inspection of things or premises and.ADR (based on ATTY HIGUIT’S OUTLINE)-CHARMAGNE FERRER’S REVIEWER 64 or may be found.. The applicant would be materially prejudiced by the disclosure of that information. that the information shall be kept confidential has the right to prevent such information from being further disclosed without the express written consent of the source or the party who made the disclosure. photographs.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. .4. Contents of the petition. The fact that there is an ongoing arbitration proceeding even if such proceeding could not continue due to some legal impediments.A party. d. Rule 9. the place where the premises to be inspected are located or the place where the acts required are to be done. when appropriate.8. Materiality or relevance of the evidence to be taken. b.The order granting assistance in taking evidence shall be immediately executory and not subject to reconsideration or appeal. . during an ADR proceeding. the petitioner may file a motion for reconsideration or appeal.The court may impose the appropriate sanction on any person who disobeys its order to testify when required or perform any act required of him. .A party requiring assistance in the taking of evidence may petition the court to direct any person. Comment/Opposition. Consequence of disobedience. any person who desires to perpetuate his testimony or that of another person may do so in accordance with Rule 24 of the Rules of Court. the court shall grant the assistance in taking evidence requested and shall order petitioner to pay costs attendant to such assistance. a. Rule 10. partnership or other entity (other than a party to the ADR proceedings or its officers) found in the Philippines.6. Relief against court action. Rule 10. RULE 10: CONFIDENTIALITY/PROTECTIVE ORDERS c. The arbitral tribunal ordered the taking of evidence or the party desires to present evidence to the arbitral tribunal. Rule 9.The comment/opposition must be filed within fifteen (15) days from service of the petition. counsel or witness who disclosed or who was compelled to disclose information relative to the subject of ADR under circumstances that would create a reasonable expectation. Perpetuation of testimony before the arbitral tribunal is constituted. b. Grounds. or would be obtained. Rule 10. the court shall be further guided by the following principles: a. the following persons involved or previously involved in a mediation may not be compelled to disclose confidential information obtained during the mediation: (1) the parties to the dispute. Relief against court action. The dismissal of the petition to vacate the arbitral award for having been filed beyond the reglementary period shall not result in the dismissal of the petition for the confirmation of such arbitral award. Rule 10. the movant must set the motion for hearing and contain a notice of hearing in accordance with Rule 15 of the Rules of Court. The person or persons who are being asked to divulge the confidential information participated in an ADR proceedings. (b) the information was not obtained during an ADR proceeding. In such an adversarial proceeding. a party may petition the court to correct/modify that award. . A mediator may not be called to testify to provide information gathered in mediation. A party. RULE 11: CONFIRMATION. However.10. or (d) the petitioner/movant is precluded from asserting confidentiality. or a nonparty participant may refuse to disclose and may prevent any other person from disclosing a mediation communication. Court action. the courts shall be guided by the following principles applicable to all ADR proceedings: Confidential information shall not be subject to discovery and shall be inadmissible in any adversarial proceeding. .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.Notice of a request for a protective order made through a motion shall be made to the opposing parties in accordance with Rule 15 of the Rules of Court. Notice.Not later than thirty (30) days from receipt of the arbitral award. a mediator. stenographer. e. CORRECTION OR VACATION OF AWARD IN DOMESTIC ARBITRATION Rule 11.2.8. Consequence of disobedience. If the court declines to enjoin a person or persons from divulging confidential information. (3) the counsel for the parties: (4) the nonparty participants. the petitioner may file a motion for reconsideration or appeal. (2) the mediator or mediators. (5) any persons hired or engaged in connection with the mediation as secretary. Apart from the other submissions.The comment/opposition must be filed within fifteen (15) days from service of the petition. in opposition to a petition to confirm the arbitral award. Who may request confirmation. at any time after the petition to vacate such arbitral award is filed. (E) A petition to confirm the arbitral award may be filed. The opposition or comment may be accompanied by written proof that (a) the information is not confidential.Any party to a domestic arbitration may petition the court to confirm.6. When to request confirmation. in opposition to a petition to vacate the arbitral award.Not later than thirty (30) days from receipt of the arbitral award.If the court finds the petition or motion meritorious. . and (6) any other person who obtains or possesses confidential information by reason of his/ her profession. correction or vacation. .Any person who disobeys the order of the court to cease from divulging confidential information shall be imposed the proper sanction by the court. he may petition the court to confirm that award. whether judicial or quasi judicial. it shall issue an order enjoining a person or persons from divulging confidential information. In resolving the petition or motion. . date and place when the ADR proceedings took place. Rule 11. A mediator who is wrongfully subpoenaed shall be reimbursed the full cost of his attorney fees and related expenses. . . Rule 10. For mediation proceedings. Information obtained through mediation shall be privileged and confidential. . A petition to vacate the arbitral award filed beyond the reglementary period shall be dismissed. and d. clerk or assistant. (D) A petition to vacate the arbitral award may be filed.1. The time. (c) there was a waiver of confidentiality. correction/modification or vacation. (B) Correction/Modification. 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. The protection of the ADR Laws shall continue to apply even if a mediator is found to have failed to act impartially. Rule 10. Rule 10. d. Comment/Opposition. . b. . (C) Vacation. not later than thirty (30) days from receipt of the award by the petitioner. correct or vacate a domestic arbitral award.7. (A) Confirmation. c.ADR (based on ATTY HIGUIT’S OUTLINE)-CHARMAGNE FERRER’S REVIEWER 65 c. a party may petition the court to vacate that award.At any time after the lapse of thirty (30) days from receipt by the petitioner of the arbitral award. b. such that a complete.The petition for confirmation. When a petition to confirm an arbitral award is pending before a court. or b. Where there was an evident miscalculation of figures or an evident mistake in the description of any person. A petition to vacate or correct/modify an arbitral award filed in another court or in a separate case before the same court shall be dismissed. or is invalid for any ground for the revocation of a contract or is otherwise unenforceable. as a violation of the rule against forum-shopping. The petition to vacate an arbitral award on the ground that the party to arbitration is a minor or a person judicially declared to be incompetent shall be filed only on behalf of the minor or incompetent and shall allege that (a) the other party to arbitration had knowingly entered into a submission or agreement with such minor or incompetent. The arbitration agreement did not exist. or a.An application to vacate an arbitral award shall be in the form of a petition to vacate or as a petition to vacate in opposition to a petition to confirm the same award. . Form of petition. the court or courts concerned may allow the consolidation of the two proceedings in one court and in one case. Venue. upon appropriate motion. . . Grounds. where any of the parties reside or where arbitration proceedings were conducted. (B) To correct/modify an arbitral award. correction/modification or vacation of a domestic arbitral award may be filed with Regional Trial Court having jurisdiction over the place in which one of the parties is doing business. Where the award is imperfect in a matter of form not affecting the merits of the controversy. d. the party seeking to vacate or correct/modify said award may only apply for those reliefs through a petition to vacate or correct/modify the award in opposition to the petition to confirm the award provided that such petition to vacate or correct/modify is filed within thirty (30) days from his receipt of the award.The Court may correct/modify or order the arbitral tribunal to correct/modify the arbitral award in the following cases: Rule 11. When a petition to vacate or correct/modify an arbitral award is pending before a court. c.4. The arbitral award was procured through corruption. d. Where the arbitrators have awarded upon a matter not submitted to them. Rule 11. One or more of the arbitrators was disqualified to act as such under the law and willfully refrained from disclosing such disqualification.(A) To vacate an arbitral award. final and definite award upon the subject matter submitted to them was not made. the defect could have been amended or disregarded by the Court. not affecting the merits of the decision upon the matter submitted. (G) A petition to correct an arbitral award may be included as part of a petition to confirm the arbitral award or as a petition to confirm that award. thing or property referred to in the award. or (b) the submission to arbitration was made by a guardian or guardian ad litem who was not authorized to do so by a competent court. b. . or so imperfectly executed them. A party to arbitration is a minor or a person judicially declared to be incompetent.3. Where the arbitrators have omitted to resolve an issue submitted to them for resolution. or e. fraud or other undue means. the party seeking to confirm said award may only apply for that relief through a petition to confirm the same award in opposition to the petition to vacate or correct/modify the award. The arbitral tribunal exceeded its powers. as a violation of the rule against forum shopping. and if it had been a commissioner’s report. The award may also be vacated on any or all of the following grounds: a. upon appropriate motion. vacation or correction/modification of an arbitral award filed in violation of the non-forum shopping rule.ADR (based on ATTY HIGUIT’S OUTLINE)-CHARMAGNE FERRER’S REVIEWER 66 (F) The filing of a petition to confirm an arbitral award shall not authorize the filing of a belated petition to vacate or set aside such award in opposition thereto. There was evident partiality or corruption in the arbitral tribunal or any of its members. Rule 11. An application to correct/modify an arbitral award may be included in a petition to confirm an arbitral award or in a petition to vacate in opposition to confirm the same award. As an alternative to the dismissal of a second petition for confirmation. the court shall disregard any other ground than those enumerated above. The arbitral award may be vacated on the following grounds: c.5. A petition to confirm or correct/modify an arbitral award filed as separate proceeding in another court or in a different case before the same court shall be dismissed. a. . The arbitral tribunal was guilty of misconduct or any form of misbehavior that has materially prejudiced the rights of any party such as refusing to postpone a hearing upon sufficient cause shown or to hear evidence pertinent and material to the controversy. In deciding the petition to vacate the arbitral award. the affidavits and reply affidavits of the parties.6. c. Moreover. the latter was not authorized by a competent court to sign such the submission or arbitration agreement. the interested party in arbitration may oppose the petition or the petition in opposition thereto for the reason that the grounds cited in the petition or the petition in opposition thereto. Rule 11.Upon finding that the petition filed under this Rule is sufficient both in form and in substance. An authentic copy of the arbitral award. do not affect the merits of the case and may be cured or remedied.8. The petitioner may within fifteen (15) days from receipt of the petition in opposition thereto file a reply. c. within a period of not more than fifteen (15) days from receipt of the order. upon motion of either party. But if the ground was raised before the arbitral tribunal in a motion to dismiss filed not later than the submission of its answer. the affidavits of witnesses shall take the place of their direct testimonies and they shall immediately be subject to cross-examination thereon. the petition must be verified by a person who has knowledge of the jurisdictional facts. the court shall set the case for hearing. . There shall be attached to the affidavits or reply affidavits documents relied upon in support of the statements of fact in such affidavits or reply affidavits. the appeal therefrom to the Court and the order or decision of the Court shall all be attached to the petition. ruling or preliminary award or decision of the arbitral tribunal. In all instances.9. . . the court shall confirm the award. b. and d. the interested party may request the court to suspend the proceedings for vacation for a period of time and to direct the arbitral tribunal to reopen and conduct a new hearing and take such other action as will eliminate the grounds for vacation of the award. the court finds that there is a need to conduct an oral hearing. Apart from other submissions. the petitioner must attach to the petition the following: a. the opposition. If the petition or the petition in opposition thereto is one for vacation of an arbitral award. it shall require the parties. and d. A certification against forum shopping executed by the applicant in accordance with Section 5 of Rule 7 of the Rules of Court. Hearing. b.5 above is fully established. The grounds relied upon by the parties in seeking the vacation of the arbitral award whether the petition is a petition for the vacation or setting aside of the arbitral award or a petition in opposition to a petition to confirm the award. If the ground of the petition is that the petitioner is an infant or a person judicially declared to be incompetent. During the hearing.7. Rule 11. except criminal cases. assuming them to be true. and an earlier petition for judicial relief under Rule 3 had been filed. If on the basis of the petition. a copy of such petition and of the decision or final order of the court shall be attached thereto. there shall be attached to the petition certified copies of documents showing such fact. In lieu of an opposition. to simultaneously submit the affidavits of all of their witnesses and reply affidavits within ten (10) days from receipt of the affidavits to be replied to.The petition must state the following: a. the respondent may file a petition in opposition to the petition. . Court action. and the arbitral tribunal ruled in favor of its own jurisdiction as a preliminary question which was appealed by a party to the Regional Trial Court. This case shall have preference over other cases before the court.ADR (based on ATTY HIGUIT’S OUTLINE)-CHARMAGNE FERRER’S REVIEWER 67 Where the petition to confirm the award and petition to vacate or correct/modify were simultaneously filed by the parties in the same court or in different courts in the Philippines. An authentic copy or authentic copies of the appointment of an arbitral tribunal. The Court shall have full control over the proceedings in order to ensure that the case is heard without undue delay. Contents of petition. is invalid or otherwise unenforceable. Rule 11. Rule 11. a copy of the order. An authentic copy of the arbitration agreement. the petitioner shall show that even if the submission or arbitration agreement was entered into by a guardian or guardian ad litem. the Court shall cause notice and a copy of the petition to be delivered to the respondent allowing him to file a comment or opposition thereto within fifteen (15) days from receipt of the petition.If the Court finds from the petition or petition in opposition thereto that there are issues of fact. Notice. The jurisdictional issues raised by a party during arbitration proceedings.Unless a ground to vacate an arbitral award under Rule 11. A statement of the date of receipt of the arbitral award and the circumstances under which it was received by the petitioner. An arbitral award shall enjoy the presumption that it was made and released in due course of arbitration and is subject to confirmation by the court . In addition. If the ground of the petition to vacate an arbitral award is that the arbitration agreement did not exist. The addresses of the parties and any change thereof. the court may order the consolidation of the two cases before either court. The opposition shall be supported by a brief of legal arguments to show the existence of a sufficient legal basis for the opposition. In referring the case back to the arbitral tribunal or to a new arbitral tribunal pursuant to Rule 24 of Republic Act No.2. The dismissal of a petition to set aside an arbitral award for being timebarred shall not automatically result in the approval of the petition filed therein and in opposition thereto for recognition and enforcement of the same award. unless such agreement was in conflict with a provision of Philippine law from which the parties cannot derogate. Rule 12. the members of which shall be chosen in the manner provided in the arbitration agreement or submission. Failure to file a petition to set aside shall preclude a party from raising grounds to resist enforcement of the award. or contains decisions on matters beyond the scope of the submission to arbitration. was not in accordance with Philippine law. or (e) in the National Capital Judicial Region. or (ii). (B) Petition to set aside. a timely petition to set aside an arbitral award is filed. the court shall either confirm or vacate the arbitral award. . Who may request recognition and enforcement or setting aside. however. b.Any party to an international commercial arbitration in the Philippines may petition the proper court to recognize and enforce or set aside an arbitral award.(A) Petition to recognize and enforce. or (iv).3. or the said agreement is not valid under the law to which the parties have subjected it or.A petition to recognize and enforce or set aside an arbitral award may.4. In a petition to vacate an award or in petition to vacate an award in opposition to a petition to confirm the award. or to revise its findings of fact or conclusions of law or otherwise encroach upon the independence of an arbitral tribunal in the making of a final award. The recognition or enforcement of the award would be contrary to public policy. 876.1. Rule 12. failing any indication thereof. Rule 12. If a timely request is made with the arbitral tribunal for correction. the petitioner may simultaneously apply with the Court to refer the case back to the same arbitral tribunal for the purpose of making a new or revised award or to direct a new hearing.The petition for enforcement and recognition of an arbitral award may be filed anytime from receipt of the award. or. When to file petition. The court may set aside or refuse the enforcement of the arbitral award only if: a.The petition to set aside an arbitral award may only be filed within three (3) months from the time the petitioner receives a copy thereof. Venue. The court finds that: (i). The subject-matter of the dispute is not capable of settlement by arbitration under the law of the Philippines. A petition to set aside can no longer be filed after the lapse of the three (3) month period. or (iii). the three (3) month period shall be counted from the time the petitioner receives the resolution by the arbitral tribunal of that request. The party making the application furnishes proof that: (i). only that part of the award which contains decisions on matters not submitted to arbitration may be set aside or only that part of the award which contains decisions on matters submitted to arbitration may be enforced. the opposing party must file therein and in opposition thereto the petition for recognition and enforcement of the same award within the period for filing an opposition. If. In the latter case. or in the appropriate case. (d) where any of the parties to arbitration resides or has its place of business. or (ii).ADR (based on ATTY HIGUIT’S OUTLINE)-CHARMAGNE FERRER’S REVIEWER 68 In resolving the petition or petition in opposition thereto in accordance with these Special ADR Rules. (b) where any of the assets to be attached or levied upon is located. Grounds to set aside or resist enforcement. In deciding the petition. order the new hearing before a new arbitral tribunal. The party making the application to set aside or resist enforcement was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings or was otherwise unable to present his case. the court may not direct it to revise its award in a particular way. be filed with the Regional Trial Court: (a) where arbitration proceedings were conducted. A party to the arbitration agreement was under some incapacity. The petition to set-aside or a pleading resisting the enforcement of an arbitral award on the ground that a . interpretation or additional award. under Philippine law. . . The composition of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement of the parties. provided that. failing such agreement. at the option of the petitioner. . if the decisions on matters submitted to arbitration can be separated from those not so submitted. (c) where the act to be enjoined will be or is being performed. The court shall not disturb the arbitral tribunal’s determination of facts and/or interpretation of law. the Court shall disregard any other ground to set aside or enforce the arbitral award other than those enumerated above. RULE 12: RECOGNITION AND ENFORCEMENT OR SETTING ASIDE OF AN INTERNATIONALCOMMERCIAL ARBITRATION AWARD Rule 12. any provision limiting the time in which the arbitral tribunal may make a decision shall be deemed applicable to the new arbitral tribunal. . The award deals with a dispute not contemplated by or not falling within the terms of the submission to arbitration. or the law. shall be dismissed by the court. The addresses of record. (B) Petition to set aside. Further.9. or any change thereof. the petitioner shall show that even if the submission or arbitration agreement was entered into by a guardian or guardian ad litem. if another court was previously requested to resolve and/or has resolved. Exclusive recourse against arbitral award. the court shall cause notice and a copy of the petition to be delivered to the respondent directing him to file an opposition thereto within fifteen (15) days from receipt of the petition. c. If the court finds from the petition or petition in opposition thereto that there are issues of fact relating to the ground(s) relied upon for the court to set aside. Rule 12. such as by appeal or petition for review or petition for certiorari or otherwise. if not yet time-barred. . there shall be attached to the petition certified copies of documents showing such fact. and e. whether made through a petition to recognize and enforce or to set aside or as a petition to set aside the award in opposition thereto. Rule 12. or petition to set aside or petition to recognize and enforce in opposition thereto. or a petition to recognize and enforce in opposition to a petition to set aside. if the ground of the petition to set aside is that the petitioner is a minor or found incompetent by a court. the parties may be required to submit briefs of legal arguments. shall be verified by a person who has personal knowledge of the facts stated therein. In addition. Contents of petition. A verification and certification against forum shopping executed by the applicant in accordance with Sections 4 and 5 of Rule 7 of the Rules of Court.If the court finds that the issue between the parties is mainly one of law. the said petitions should state the grounds relied upon to set it aside. d.The application to recognize and enforce or set aside an arbitral award. b.5. In addition.The petition to set aside or petition to set aside in opposition to a petition to recognize and enforce an arbitral award in international commercial arbitration shall have the same contents as a petition to recognize and enforce or petition to recognize and enforce in opposition to a petition to set aside an arbitral award. c. and d. Notice. A statement that an arbitral award was issued and when the petitioner received it.ADR (based on ATTY HIGUIT’S OUTLINE)-CHARMAGNE FERRER’S REVIEWER 69 party was a minor or an incompetent shall be filed only on behalf of the minor or incompetent and shall allege that (a) the other party to arbitration had knowingly entered into a submission or agreement with such minor or incompetent. sufficiently discussing the legal issues and the legal basis for the relief prayed for by each of them. it shall require the parties within a period of not more than fifteen (15) days from receipt of the order .6. Rule 12. In either case. the respondent may file a petition to set aside in opposition to a petition to recognize and enforce.The petition to recognize and enforce or petition to set aside in opposition thereto. A statement that the arbitration agreement or submission exists. When a timely petition to set aside an arbitral award is filed. In lieu of an opposition. the petitioner shall apprise the court before which the petition to recognize and enforce or set aside is pending of the status of the appeal or its resolution. the petitioner shall attach to the petition the following: a. or through a petition to set aside or petition to recognize and enforce in opposition thereto. b. Rule 12. Form. the application to set it aside. Apart from other submissions. file a reply. on appeal.7. Recourse to a court against an arbitral award shall be made only through a petition to set aside the arbitral award and on grounds prescribed by the law that governs international commercial arbitration.8. Submission of documents.(A) Petition to recognize and enforce. the latter was not authorized by a competent court to sign such the submission or arbitration agreement. . An authentic copy of the arbitration agreement. The relief sought. shall be made through a petition to set aside the same award in the same proceedings. The petitioner may within fifteen (15) days from receipt of the petition to set aside in opposition to a petition to recognize and enforce. or (b) the submission to arbitration was made by a guardian or guardian ad litem who was not authorized to do so by a competent court. . An authentic copy or authentic copies of the appointment of an arbitral tribunal. . not more than fifteen (15) days from receipt of the order. of the parties to arbitration. When a petition to recognize and enforce an arbitral award is pending. . the opposing party may file a petition for recognition and enforcement of the same award in opposition thereto. shall state the following: a. . or from receipt of the petition to recognize and enforce in opposition to a petition to set aside. An authentic copy of the arbitral award. Rule 12. the arbitral tribunal’s preliminary determination in favor of its own jurisdiction.Upon finding that the petition filed under this Rule is sufficient both in form and in substance. The names of the arbitrators and proof of their appointment. Any other recourse from the arbitral award. RULE 13: RECOGNITION AND ENFORCEMENT OF A FOREIGN ARBITRAL AWARD Rule 13. Rule 12. recognize and enforce a foreign arbitral award made in a country that is not a signatory to the New York Convention as if it were a Convention Award. Rule 12. The court when asked to set aside an arbitral award may also. (d) if any of the parties is an individual. . all documents relied upon in support of the statements of fact in such affidavits or reply affidavits. Rule 12. where any of those individuals resides. . the opposition.12. under the law of the country where the award was made.ADR (based on ATTY HIGUIT’S OUTLINE)-CHARMAGNE FERRER’S REVIEWER 70 simultaneously to submit the affidavits of all of their witnesses and reply affidavits within ten (10) days from receipt of the affidavits to be replied to. This case shall have preference over other cases before the court. with the Regional Trial Court (a) where the assets to be attached or levied upon is located. suspend the proceedings to set aside to await the ruling of the court on such pending appeal or. which shall include reasonable attorney’s fees of the prevailing party against the unsuccessful party. The court. the party praying for recognition and enforcement or setting aside of an arbitral award shall submit a statement under oath confirming the costs he has incurred only in the proceedings for such recognition and enforcement or setting aside. The prevailing party shall be entitled to an award of costs. the affidavits of witnesses shall take the place of their direct testimonies and they shall immediately be subject to cross-examination thereon. When to petition. During the hearing. . A party to the arbitration agreement was under some incapacity. or to revise its findings of fact or conclusions of law or otherwise encroach upon the independence of an arbitral tribunal in the making of a final award.Any party to a foreign arbitration may petition the court to recognize and enforce a foreign arbitral award. Rule 13. except criminal cases. upon grounds of comity and reciprocity.The petition to recognize and enforce a foreign arbitral award shall be filed. or .Unless otherwise agreed upon by the parties in writing. in the same proceedings.3. suspend the proceedings for a period of time determined by it to give the arbitral tribunal an opportunity to resume the arbitral proceedings or to take such other action as in the arbitral tribunal’s opinion will eliminate the grounds for setting aside. consolidate the proceedings to set aside with the earlier appeal. the court shall recognize and enforce the award. .At any time after receipt of a foreign arbitral award. or (e) in the National Capital Judicial Region. The court when asked to set aside an arbitral award may. Rule 13. the court shall set the case for hearing. The costs shall include the attorney’s fees the party has paid or is committed to pay to his counsel of record. A Philippine court shall not set aside a foreign arbitral award but may refuse it recognition and enforcement on any or all of the following grounds: a. . Presumption in favor of confirmation.10. Costs. Rule 12. The court shall not disturb the arbitral tribunal’s determination of facts and/or interpretation of law. . unless the adverse party is able to establish a ground for setting aside or not enforcing an arbitral award. the court shall dismiss the petition. (b) where the act to be enjoined is being performed. Venue. . The court shall determine the reasonableness of the claim for attorney’s fees. at the time the case is submitted to the court for decision. where appropriate and upon request by a party. or the said agreement is not valid under the law to which the parties have subjected it or.11. at the option of the petitioner.4.It is presumed that an arbitral award was made and released in due course and is subject to enforcement by the court.If on the basis of the petition. Judgment of the court. the court finds that there is a need to conduct an oral hearing.13. The court shall have full control over the proceedings in order to ensure that the case is heard without undue delay. failing any indication thereof. . in referring the case back to the arbitral tribunal may not direct it to revise its award in a particular way. There shall be attached to the affidavits or reply affidavits. The court may.2. Rule 12. Rule 13. If.1. when the preliminary ruling of an arbitral tribunal affirming its jurisdiction to act on the matter before it had been appealed by the party aggrieved by such preliminary ruling to the court. In resolving the petition or petition in opposition thereto in accordance with the Special ADR Rules.The recognition and enforcement of a foreign arbitral award shall be governed by the 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the "New York Convention") and this Rule. Who may request recognition and enforcement. the court shall either set aside or enforce the arbitral award. any party to arbitration may petition the proper Regional Trial Court to recognize and enforce such award. the affidavits and reply affidavits of the parties. The party making the application to refuse recognition and enforcement of the award furnishes proof that: (i). Governing law and grounds to refuse recognition and enforcement.Unless a ground to set aside an arbitral award under Rule 12. there is a petition to recognize and enforce the arbitral award filed in opposition to the petition to set aside. (c) in the principal place of business in the Philippines of any of the parties.4 above is fully established. Suspension of proceedings to set aside. in the alternative.14. Hearing. and b. Opposition.The court shall set the case for hearing if on the basis of the foregoing submissions there is a need to do so. or (iv). Rule 13. only that part of the award which contains decisions on matters not submitted to arbitration may be set aside. Apart from other submissions. or (v). The court may. The translation shall be certified by an official or sworn translator or by a diplomatic or consular agent. . the court may also require the other party to give suitable security. motu proprio or upon request of any party. Rule 13. the parties may be required to submit briefs of legal arguments. there are issues of fact relating to the ground/s relied upon for the court to refuse enforcement. . allow the submission of reply affidavits within a period of not less than fifteen (15) days nor more than thirty (30) days from receipt of the order granting said request. or (iii). The recognition or enforcement of the award would be contrary to public policy. Upon application of the petitioner. may adjourn or defer rendering a decision thereon if. . If. The court shall have full control over the proceedings in order to ensure that the case is heard without undue delay. An authentic copy of the arbitral award. Rule 13. The court finds that: (i). an application for the setting aside or suspension of the award has been made with a competent authority in the country where the award was made. The award has not yet become binding on the parties or has been set aside or suspended by a court of the country in which that award was made. provided that.9.The petition shall state the following: a. Rule 13.10.7. b.If the court finds that the issue between the parties is mainly one of law. . the country where the arbitral award was made and whether such country is a signatory to the New York Convention. was not in accordance with the law of the country where arbitration took place. The composition of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement of the parties or. the court shall.It is presumed that a foreign arbitral award was made and released in due course of arbitration and is subject to enforcement by the court. .6.11. the petition shall have attached to it the following: a. or (ii). In the absence of any indication in the award. or contains decisions on matters beyond the scope of the submission to arbitration. The court shall recognize and enforce a foreign arbitral award unless a ground to refuse recognition or enforcement of the foreign arbitral award under this rule is fully established. upon the request of any party.The court before which a petition to recognize and enforce a foreign arbitral award is pending. . During the hearing.ADR (based on ATTY HIGUIT’S OUTLINE)-CHARMAGNE FERRER’S REVIEWER 71 (ii). the court shall cause notice and a copy of the petition to be delivered to the respondent allowing him to file an opposition thereto within thirty (30) days from receipt of the notice and petition. The addresses of the parties to arbitration. Court action. Contents of petition. not more than thirty (30) days from receipt of the order. require the parties to simultaneously submit the affidavits of all of their witnesses within a period of not less than fifteen (15) days nor more than thirty (30) days from receipt of the order. or b. An authentic copy of the arbitration agreement. Submissions. in the meantime. the affidavits of witnesses shall take the place of their direct testimonies and they shall immediately be subject to cross-examination.The opposition shall be verified by a person who has personal knowledge of the facts stated therein. sufficiently discussing the legal issues and the legal bases for the relief prayed for by each other.5. and c. Notice and opposition. The relief sought. . The subject-matter of the dispute is not capable of settlement or resolution by arbitration under Philippine law. Adjournment/deferment of decision on enforcement of award. from a review of the petition or opposition. Rule 13. If the foreign arbitral award or agreement to arbitrate or submission is not made in English. Rule 13. . the petitioner shall also attach to the petition a translation of these documents into English. The court shall disregard any ground for opposing the recognition and enforcement of a foreign arbitral award other than those enumerated above. failing such agreement. Hearing. The court shall give due priority to hearings on petitions under this Rule.Upon finding that the petition filed under this Rule is sufficient both in form and in substance. Rule 13. if the decisions on matters submitted to arbitration can be separated from those not so submitted. There shall be attached to the affidavits or reply affidavits all documents relied upon in support of the statements of fact in such affidavits or reply affidavits. The award deals with a dispute not contemplated by or not falling within the terms of the submission to arbitration.8. The party making the application was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings or was otherwise unable to present his case. Rule 13.2. Application of the rules on arbitration. recognize and enforce a foreign arbitral award made in a country not a signatory to the New York Convention when such country extends comity and reciprocity to awards made in the Philippines. where any of those individuals resides. Court action. and (ii).After a summary hearing. Rule 15. which was deposited with the Clerk of Court of the Regional Trial Court. Certificate of Deposit showing that the mediated settlement agreement was deposited with the Clerk of Court. may. Section 48.5. .1. the written settlement agreement may be deposited. by submitting written proof of compliance with the mediated settlement agreement or such other affirmative or negative defenses it may have.At any time after an agreement is reached. Whenever applicable and appropriate.The court shall. Enforcement of mediated settlement agreement. PART III PROVISIONS SPECIFIC TO MEDIATION RULE 14: GENERAL PROVISIONS Rule 14.3. State the following: (i). Rule 15. . Dismissal of action. Venue. Name and designate. as petitioner or respondent. Registry Book. Rule 15. Opposition. . RULE 17: REFERRAL TO CIAC Rule 17. of the Rules of Court.The written settlement agreement may be jointly deposited by the parties or deposited by one party with prior notice to the other party/ies with the Clerk of Court of the Regional Trial Court (a) where the principal place of business in the Philippines of any of the parties is located. (b) if any of the parties is an individual. The court shall not disturb the arbitral tribunal’s determination of facts and/or interpretation of law. within fifteen (15) days from receipt of notice or service of the petition. Rule 15. file a verified petition with the same court to enforce said agreement. that there is no merit in any of the affirmative or negative defenses raised.7.Any of the parties to a mediated settlement agreement.1. Recognition and enforcement of nonconvention award. . PART IV PROVISIONS SPECIFIC TO CONSTRUCTION ARBITRATION RULE 16: GENERAL PROVISIONS Rule 16. it shall dismiss the petition.12. which resulted from that mediation. the court may nevertheless treat such award as a foreign judgment enforceable as such under Rule 39. the court shall order the enforcement thereof. Application of the rules on arbitration. Whenever applicable and appropriate. and (ii). . The ultimate facts that would show that the adverse party has defaulted to perform its obligation under said agreement. Rule 15.1. The addresses of the petitioner and respondents. upon becoming aware that the parties have entered into an .The Clerk of Court of each Regional Trial Court shall keep a Registry Book that shall chronologically list or enroll all the mediated settlement agreements/settlement awards that are deposited with the court as well as the names and address of the parties thereto and the date of enrollment and shall issue a Certificate of Deposit to the party that made the deposit. Have attached to it the following: (i). Who makes a deposit.4.Any party to a mediation that is not court-annexed may deposit with the court the written settlement agreement. RULE 15: DEPOSIT AND ENFORCEMENT OF MEDIATED SETTLEMENT AGREEMENTS Rule 15.The verified petition shall: a. only upon grounds provided by these Special ADR Rules. An authentic copy of the mediated settlement agreement.ADR (based on ATTY HIGUIT’S OUTLINE)-CHARMAGNE FERRER’S REVIEWER 72 The decision of the court recognizing and enforcing a foreign arbitral award is immediately executory.6. Contents of petition. or (c) in the National Capital Judicial Region.A Regional Trial Court before which a construction dispute is filed shall.The adverse party may file an opposition. the court shall either [a] recognize and/or enforce or [b] refuse to recognize and enforce the arbitral award. . b. Rule 15. When deposit is made. . the rules on arbitration shall be applied in proceedings before the court relative to a dispute subject to construction arbitration. If that country does not extend comity and reciprocity to awards made in the Philippines. . if the court finds that the agreement is a valid mediated settlement agreement. the pertinent rules on arbitration shall be applied in proceedings before the court relative to a dispute subject to mediation.8.1. and c. Rule 15. in whole or in part. In resolving the petition for recognition and enforcement of a foreign arbitral award in accordance with these Special ADR Rules. otherwise. and the respondent has breached that agreement. . upon breach thereof. all parties to the mediated settlement agreement and those who may be affected by it. . ADR (based on ATTY HIGUIT’S OUTLINE)-CHARMAGNE FERRER’S REVIEWER 73 arbitration agreement.An order dismissing the case and referring the dispute to arbitration by CIAC shall be immediately executory. Multiple actions and parties.Upon receipt of the motion to refer the dispute to arbitration by CIAC.The court shall hear the motion only once and for the purpose of clarifying relevant factual and legal issues. PART V PROVISIONS SPECIFIC TO OTHER FORMS OF ADR RULE 18: GENERAL PROVISIONS Rule 18. . motu proprio or upon motion made not later than the pre-trial. Otherwise. that there is a valid and enforceable arbitration agreement involving a construction dispute. c. Rule 17. the neutral third party merely assists the parties in reaching a voluntary agreement). Dismissal of the civil action would prejudice the rights of the parties to the civil action who are not bound by the arbitration agreement. Rule 18. .7.e. the court shall issue an order directing the case to proceed with respect to the parties not bound by the arbitration agreement. If the arbitration agreement or other document evidencing the existence of that agreement is already part of the record. Furthermore. . dismiss the case and refer the parties to arbitration to be conducted by the Construction Industry Arbitration Commission (CIAC). Referral .If the other parties fail to file their opposition on or before the day of the hearing. Rule 17. Rule 17. 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.8. d.This rule governs the procedure for matters brought before the court involving the following forms of ADR: a. Rule 17. All doubts shall be resolved in favor of the existence of a construction dispute and the arbitration agreement.6. Any other ADR form.If the other ADR form/process is more akin to mediation (i.5. The opposition shall clearly set forth the reasons why the court should not dismiss the case. Rule 17. b.2. the herein rules on mediation shall apply.1. e. Referral to arbitration does not appear to be the most prudent action. assisted by their respective counsel. . Mini-trial. Mediation-arbitration.. the court shall proceed to hear the case. Form and contents of motion. .The court shall not decline to dismiss the civil action and make a referral to arbitration by CIAC for any of the following reasons: a. d.The request for dismissal of the civil action and referral to arbitration shall be through a verified motion that shall (a) contain a statement showing that the dispute is a construction dispute. issue an order directing the inclusion in arbitration of those parties who are bound by the arbitration agreement directly or by reference thereto pursuant to Section 34 of Republic Act No. A combination thereof. The court may. . The issues raised in the civil action could be speedily and efficiently resolved in its entirety by the Court rather than in arbitration. Applicability of the rules on mediation. Rule 17. .If the parties manifest that they have agreed to submit all or part of their dispute pending with the court to arbitration by CIAC. the court shall motu proprio resolve the motion only on the basis of the facts alleged in the motion. .4. Opposition. and (b) be accompanied by proof of the existence of the arbitration agreement.3. rather than the CIAC. those documents need not be submitted to the court provided that the movant has cited in the motion particular references to the records where those documents may be found. the court shall refer them to CIAC for arbitration. however. . The motion shall also contain a notice of hearing addressed to all parties and shall specify the date and time when the motion will be heard. Rule 17. Early neutral evaluation. or e. the body that would exclusively resolve the dispute. which must not be later than fifteen (15) days after the filing of the motion. After hearing. Neutral evaluation. The movant shall ensure receipt by all parties of the motion at least three days before the date of the hearing. Referral immediately executory. the court shall dismiss the civil action and refer the parties to arbitration if it finds. b. unless all parties to arbitration. Applicability of rules to other forms of ADR.2. c. 9285. or f. Hearing. the other party may file an opposition to the motion on or before the day such motion is to be heard. Court action. based on the pleadings and supporting documents submitted by the parties. Not all of the disputes subject of the civil action may be referred to arbitration. submit to the court a written agreement making the court. . Referral. Rule 19. Enjoining or refusing to enjoin a person from divulging confidential information. No motion for reconsideration shall be allowed from the following rulings of the Regional Trial Court: a. Suspending the proceedings to set aside an international commercial arbitral award and referring the case back to the arbitral tribunal. . h. Refusing to grant assistance in taking evidence. . validity or enforceability of an arbitration agreement pursuant to Rule 3. Rule 19. Any ruling on the challenge to the appointment of an arbitrator. f. the herein rules on arbitration shall apply.If a dispute is already before a court. Granting or denying a party an interim measure of protection. Denying a petition for the appointment of an arbitrator. mini-trial or mediation-arbitration.3.4. Recognizing and/or enforcing a foreign arbitral award. Recognizing and/or enforcing. e. Confirming. MOTION FOR RECONSIDERATION Rule 19. At any time during court proceedings.4. the other party or parties shall have a non-extendible period of fifteen (15) days to file his opposition or comment. An order appointing an arbitrator.10 (B). l. Rule 18. j. the neutral third party has the power to make a binding resolution of the dispute). vacating or correcting a domestic arbitral award. d. Motion for reconsideration. and p. APPEAL AND CERTIORARI A.A motion for reconsideration shall be resolved within thirty (30) days from receipt of the opposition or comment or upon the expiration of the period to file such opposition or comment.1 (A). Contents and notice. even after pre-trial. Rule 19. .A motion for reconsideration may be filed with the Regional Trial Court within a non-extendible period of fifteen (15) days from receipt of the questioned ruling or order. Resolution of motion. APPEAL AND CERTIORARI RULE 19: MOTION FOR RECONSIDERATION. either party may before and during pre-trial. That the arbitration agreement is inexistent. An order granting assistance in taking evidence. e. c. Denying a request to refer the parties to arbitration. recognize and/or enforce an international commercial arbitral award.Upon receipt of the motion for reconsideration. Either party may submit to the court. i. a.2. . when allowed. f. Opposition or comment. d. or dismissing a petition to recognize and/or enforce an international commercial arbitral award. and c. m.ADR (based on ATTY HIGUIT’S OUTLINE)-CHARMAGNE FERRER’S REVIEWER 74 Rule 18. Granting or dismissing a petition to enforce a deposited mediated settlement agreement.5. Submission of settlement agreement. invalid or unenforceable pursuant to Rule 3. the parties may jointly move for suspension of the action pursuant to Article 2030 of the Civil Code of the Philippines where the possibility of compromise is shown. A prima facie determination upholding the existence.5.e. When to move for reconsideration.19.3. b. . or refusing recognition and/or enforcement of the same. o.The motion shall be made in writing stating the ground or grounds therefor and shall be filed with the court and served upon the other party or parties. Rule 19.. Any order resolving the issue of the termination of the mandate of an arbitrator. even if the court does not recognize and/or enforce the same. Rule 18. g. PART VI MOTION FOR RECONSIDERATION. before which the case is pending. Upholding or reversing the arbitral tribunal’s jurisdiction pursuant to Rule 3. n. Adjourning or deferring a ruling on a petition to set aside.1. Declining a request for assistance in taking evidence. file a motion for the court to refer the parties to other ADR forms/processes. b. Dismissing the petition to set aside an international commercial arbitral award.-If the other ADR form/process is more akin to arbitration (i. any settlement agreement following a neutral or an early neutral evaluation. Setting aside an international commercial arbitral award. Applicability of rules on arbitration. A party may ask the Regional Trial to reconsider its ruling on the following: k. An order referring the dispute to arbitration. 11. with proof of service of a copy thereof on the adverse party and on the Regional Trial Court. Rule 19. provided under this Rule. as the court cannot substitute its judgment for that of the arbitral tribunal.ADR (based on ATTY HIGUIT’S OUTLINE)-CHARMAGNE FERRER’S REVIEWER 75 Rule 19. 876 or under Rule 34 of the Model Law in a domestic arbitration. .12. The original copy of the petition intended for the Court of Appeals shall be marked original by the petitioner. . or for setting aside an award in an international arbitration under Article 34 of the Model Law. Setting aside an international commercial arbitration award. Granting or denying an interim measure of protection. Rule on judicial review on arbitration in the Philippines.An appeal to the Court of Appeals through a petition for review under this Special Rule shall only be allowed from the following final orders of the Regional Trial Court: a. Where to appeal. Denying a petition for appointment of an arbitrator. and m.10. . or of law. Rule 19. h. Prohibited alternative remedies. Rule 19. How appeal taken. APPEALS TO THE COURT OF APPEALS Rule 19. Rule 19. a party to an arbitration is precluded from filing an appeal or a petition for certiorari questioning the merits of an arbitral award. Reversing the ruling of the arbitral tribunal upholding its jurisdiction.The remedy of an appeal through a petition for review or the remedy of a special civil action of certiorari from a decision of the Regional Trial Court made under the Special ADR Rules shall be allowed in the instances.8.Where the remedies of appeal and certiorari are specifically made available to a party under the Special ADR Rules. recourse to one remedy shall preclude recourse to the other. The court shall not set aside or vacate the award of the arbitral tribunal merely on the ground that the arbitral tribunal committed errors of fact.Appeal shall be taken by filing a verified petition for review in seven (7) legible copies with the Court of Appeals. . When to appeal. Refusing recognition and/or enforcement of a foreign arbitral award. c.The petition for review shall be filed within fifteen (15) days from notice of the decision of the Regional Trial Court or the denial of the petitioner’s motion for reconsideration. Dismissing a petition to enforce an international commercial arbitration award. C. l. Recognizing and/or enforcing an international commercial arbitration award. . the petitioner shall pay to the clerk of court of the Court of Appeals . j. but shall have no power to vacate or set aside a foreign arbitral award. Recognizing and/or enforcing a foreign arbitral award. . d.7.6.15. or of fact and law. Rule 19. If the Regional Trial Court is asked to set aside an arbitral award in a domestic or international arbitration on any ground other than those provided in the Special ADR Rules. .14. e. Rule 19. the court can only vacate or set aside the decision of an arbitral tribunal upon a clear showing that the award suffers from any of the infirmities or grounds for vacating an arbitral award under Section 24 of Republic Act No. Subject matter and governing rules. Denying a petition for assistance in taking evidence. the court shall entertain such ground for the setting aside or non-recognition of the arbitral award only if the same amounts to a violation of public policy. i. . k. .An agreement to refer a dispute to arbitration shall mean that the arbitral award shall be final and binding.No party shall be allowed a second motion for reconsideration. Appeal to the Court of Appeals.13. f. and instituted only in the manner. Granting or dismissing a petition to enforce a deposited mediated settlement agreement.9.The court can deny recognition and enforcement of a foreign arbitral award only upon the grounds provided in Article V of the New York Convention. or for such other grounds provided under these Special Rules. vacating or correcting/modifying a domestic arbitral award. Upon the filing of the petition and unless otherwise prescribed by the Court of Appeals. g. Dismissing the petition to set aside an international commercial arbitration award even if the court does not decide to recognize or enforce such award. Consequently. Enjoining or refusing to enjoin a person from divulging confidential information. Rule 19.As a general rule. No appeal or certiorari on the merits of an arbitral award. B. Rule on judicial review of foreign arbitral award.An appeal under this Rule shall be taken to the Court of Appeals within the period and in the manner herein provided. GENERAL PROVISIONS ON APPEAL AND CERTIORARI Rule 19. Confirming. . b. No second motion for reconsideration. Failure of the petitioner to post such bond shall be a ground for the Court of Appeals to dismiss the petition. a party may file a special . . .23. the Court of Appeals may require the court or agency concerned to transmit the original or a legible certified true copy of the entire record of the proceeding under review. and there is no appeal or any plain.19.25. The Court of Appeals shall render judgment within sixty (60) days from the time the case is submitted for decision. (c) be accompanied by a clearly legible duplicate original or a certified true copy of the decision or resolution of the Regional Trial Court appealed from. without impleading the court or agencies either as petitioners or respondent. and (b) state the reasons why the petition should be denied or dismissed. and proof of such service shall be filed with the Court of Appeals.00 and deposit the sum of P500.18. or with grave abuse of discretion amounting to lack or excess of jurisdiction. The case shall be deemed submitted for decision upon the filing of the last pleading or memorandum required by the Court of Appeals. Action on the petition. the deposit for costs. vacating and/or setting aside an arbitral award is premised on a finding of fact. Rule 19. Rule 19. Effect of failure to comply with requirements. the Court of Appeals may inquire only into such fact to determine the existence or non-existence of the specific ground under the arbitration laws of the Philippines relied upon by the Regional Trial Court to refuse to recognize and/or enforce. Rule 19.500. If the Court of Appeals denies the motion. and on the basis of the petition or the records. not a motion to dismiss.The comment shall be filed within ten (10) days from notice in seven (7) legible copies and accompanied by clearly legible certified true copies of such material portions of the record referred to therein together with other supporting papers. Transmittal of records.If the petition is given due course. . . final order. Subject of appeal restricted in certain instance. otherwise. Contents of the Petition.The Court of Appeals may require the respondent to file a comment on the petition. the contents and the documents. . has acted without or in excess of its jurisdiction.24. Due course. The Court of Appeals may require or permit subsequent correction of or addition to the record. Certiorari to the Court of Appeals. Contents of Comment. . Rule 19. SPECIAL CIVIL ACTION FOR CERTIORARI Rule 19.When the Regional Trial Court. . judgment. Any such inquiry into a question of fact shall not be resorted to for the purpose of substituting the court’s judgment for that of the arbitral tribunal as regards the latter’s ruling on the merits of the controversy. A copy thereof shall be served on the petitioner. Rule 19. that the petition does not appear to be prima facie meritorious. Rule 19.17. Rule 19.26. or resolution sought to be reviewed. and adequate remedy in the ordinary course of law. Party appealing decision of court confirming arbitral award required to post bond.If the decision of the Regional Trial Court refusing to recognize and/or enforce. The petition shall state the specific material dates showing that it was filed within the period fixed herein. . D. the Court of Appeals may set the case for oral argument or require the parties to submit memoranda within a period of fifteen (15) days from notice. which should accompany the petition.The petition for review shall (a) state the full names of the parties to the case. proof of service of the petition. within ten (10) days from notice. and (d) contain a sworn certification against forum shopping as provided in the Rules of Court. the Court of Appeals finds prima facie that the Regional Trial Court has committed an error that would warrant reversal or modification of the judgment. in making a ruling under the Special ADR Rules. it shall dismiss the same.16.Within fifteen (15) days from notice that the petition has been given due course. (b) contain a concise statement of the facts and issues involved and the grounds relied upon for the review. Submission for decision.ADR (based on ATTY HIGUIT’S OUTLINE)-CHARMAGNE FERRER’S REVIEWER 76 docketing fees and other lawful fees of P3.The Court of Appeals shall within fifteen (15) days from receipt of the petition require the party appealing from the decision or a final order of the Regional Trial Court. . or denying a petition to set aside or vacate the arbitral award to post a bond executed in favor of the prevailing party equal to the amount of the award. Exemption from payment of docket and other lawful fees and the deposit for costs may be granted by the Court of Appeals upon a verified motion setting forth valid grounds therefor.The appeal shall not stay the award.20. or dismiss the petition if it finds. final order or resolution sought to be reviewed unless the Court of Appeals directs otherwise upon such terms as it may deem just. the petitioner shall pay the docketing and other lawful fees and deposit for costs within fifteen days from the notice of the denial. upon consideration of the grounds alleged and the legal briefs submitted by the parties. vacate and/or set aside an award. Rule 19.The court shall dismiss the petition if it fails to comply with the foregoing requirements regarding the payment of the docket and other lawful fees.If upon the filing of a comment or such other pleading or documents as may be required or allowed by the Court of Appeals or upon the expiration of the period for the filing thereof. The record to be transmitted may be abridged by agreement of all parties to the proceeding. it may give due course to the petition. Rule 19. together with certified true copies of such material portions of the record referred to therein and other supporting papers. Effect of appeal. The comment shall (a) point out insufficiencies or inaccuracies in petitioner’s statement of facts and issues.00 for costs. Rule 19. speedy.22.21. . either confirming or enforcing an arbitral award. . the arbitral tribunal shall not be included even as a nominal party. When to file petition. Prohibition against injunctions. Rule 19. Arbitral tribunal a nominal party in the petition. Upon the filing of the petition and unless otherwise prescribed by the Court of Appeals. the tribunal may be notified of the proceedings and furnished with court processes. . b. together with a copy of the petition and any annexes thereto. . or upon consideration of the ground alleged and the legal briefs submitted by the parties. . the petitioner shall pay the docketing and other lawful fees and deposit for costs within fifteen days from the notice of the denial. Denying a petition for assistance in taking evidence.31. Rule 19. Granting or refusing an interim relief.28 above. j. Confirming.The petition shall be accompanied by a certified true copy of the questioned judgment. Form. copies of all pleadings and documents relevant and pertinent thereto. or denying the same. Such order shall be served on the respondents in such manner as the court may direct. Rule 19. the arbitral tribunal shall not be required to submit any pleadings or written submissions to the court. d. order or resolution sought to be annulled or set aside. Allowing a party to enforce a foreign arbitral award pending appeal. .29. however. . a. Rule 19. and a sworn certification of non-forum shopping as provided in the Rules of Court. As nominal party. Rule 19.ADR (based on ATTY HIGUIT’S OUTLINE)-CHARMAGNE FERRER’S REVIEWER 77 civil action for certiorari to annul or set aside a ruling of the Regional Trial Court. In petitions relating to the recognition and enforcement of a foreign arbitral award. . Denying the request to refer the dispute to arbitration. recognize and or enforce an international commercial arbitral award. or the continuation of arbitration. and k.27.34.500. within a non-extendible period of fifteen (15) days. f. .00 for costs.30. Denying a petition for the appointment of an arbitrator. submit such pleadings or written submissions if the same serves the interest of justice. vacating or correcting a domestic arbitral award. Reversing the arbitral tribunal’s preliminary determination upholding its jurisdiction.32. . However.If the petition is sufficient in form and substance to justify such process. The arbitral tribunal or an arbitrator may.The petition must be filed with the Court of Appeals within fifteen (15) days from notice of the judgment. If the Court of Appeals denies the motion. Allowing a party to enforce an international commercial arbitral award pending appeal. the constitution of the arbitral tribunal.A petition for certiorari to the court from the action of the appointing authority or the arbitral tribunal allowed under this Rule shall not prevent the arbitral tribunal from continuing the proceedings and rendering its award. prohibit or enjoin the commencement of arbitration.00 and deposit the sum of P500. and disobedience thereto shall be punished as contempt. the arbitral proceedings and any award rendered therein will be subject to the final outcome of the pending petition for certiorari. Suspending the proceedings to set aside an international commercial arbitral award and referring the case back to the arbitral tribunal. . Rule 19. the court shall render judgment granting the relief prayed for or to which the petitioner is entitled. Arbitration may continue despite petition for certiorari.A certified copy of the judgment rendered in accordance with the last preceding section shall be served upon the Regional Trial Court concerned in such manner as the Court of Appeals may direct. h. the petitioner shall pay to the clerk of court of the Court of Appeals docketing fees and other lawful fees of P3. No extension of time to file the petition shall be allowed. during the pendency of the proceedings before it.After the comment is filed. c.The arbitral tribunal shall only be a nominal party in the petition for certiorari. g.35. Holding that the arbitration agreement is inexistent. e. A special civil action for certiorari may be filed against the following orders of the court. Adjourning or deferring a ruling on whether to set aside.The Court of Appeals shall not. Service and enforcement of order or judgment.The court shall dismiss the petition if it fails to comply with Rules 19. . Should the arbitral tribunal continue with the proceedings.27 and 19. order or resolution of the Regional Trial Court. invalid or unenforceable. Rule 19. i. Proceedings after comment is filed. the petition does not appear to be prima facie meritorious. Order to comment. Rule 19.28. or the time for the filing thereof has expired. Court to dismiss petition. the Court of Appeals shall immediately issue an order requiring the respondent or respondents to comment on the petition within a non-extendible period of fifteen (15) days from receipt of a copy thereof. Rule 19. Exemption from payment of docket and other lawful fees and the deposit for costs may be granted by the Court of Appeals upon a verified motion setting forth valid grounds therefor.33. If the petition is given due course. b. Rule 19. (d) be accompanied by a clearly legible duplicate original.38. which must be distinctly set forth. but of sound judicial discretion. or a certified true copy of the judgment or final order or resolution certified by the clerk of court of the court a quo and the requisite number of plain copies thereof. . . shall not warrant the exercise of the Supreme Court’s discretionary power. extension. Time for filing. which will be granted only for serious and compelling reasons resulting in grave prejudice to the aggrieved party. of law or both questions of fact and law. principle. proof of service of the petition. The petition shall raise only questions of law. while neither controlling nor fully measuring the court's discretion. and such material portions of the record as would support the petition. A mere general allegation that the Court of Appeals has committed serious and substantial error or that it has acted with grave abuse of discretion resulting in substantial prejudice to the petitioner without indicating with specificity the nature of such error or abuse of discretion and the serious prejudice suffered by the petitioner on account thereof. with full payment of the docket and other lawful fees and the deposit for costs before the expiration of the reglementary period. Committed an error so egregious and harmful to a party as to amount to an undeniable excess of jurisdiction.A party desiring to appeal by certiorari from a judgment or final order or resolution of the Court of Appeals issued pursuant to these Special ADR Rules may file with the Supreme Court a verified petition for review on certiorari. if any. Due course. The error imputed to the Court of Appeals must be grounded upon any of the above prescribed grounds for review or be closely analogous thereto. (b) indicate the material dates showing when notice of the judgment or final order or resolution subject thereof was received.The failure of the petitioner to comply with any of the foregoing requirements regarding the payment of the docket and other lawful fees.40. The mere fact that the petitioner disagrees with the Court of Appeals’ determination of questions of fact. when a motion for new trial or reconsideration. . without impleading the lower courts or judges thereof either as petitioners or respondents. was filed and when notice of the denial thereof was received. Dismissal or denial of petition. Rule 19. Failed to apply the applicable standard or test for judicial review prescribed in these Special ADR Rules in arriving at its decision resulting in substantial prejudice to the aggrieved party. or of the denial of the petitioner's motion for new trial or reconsideration filed in due time after notice of the judgment. and the contents of and the documents which should accompany the petition shall be sufficient ground for the dismissal thereof. Rule 19. indicate the serious and compelling. APPEAL BY CERTIORARI TO THE SUPREME COURT Rule 19.00 for costs at the time of the filing of the petition. when the Court of Appeals: a.A review by the Supreme Court is not a matter of right. Rule 19. Contents of petition. restrictive nature of the grounds that will warrant the exercise of the Supreme Court’s discretionary powers. or that the questions raised therein are too insubstantial to require consideration. Review discretionary. and (e) contain a sworn certification against forum shopping. On motion duly filed and served.The petition shall be filed within fifteen (15) days from notice of the judgment or final order or resolution appealed from. PART VII FINAL PROVISIONS RULE 20: FILING AND DEPOSIT FEES .The petition shall be filed in eighteen (18) copies. and shall (a) state the full name of the appealing party as the petitioner and the adverse party as respondent.Unless he has theretofore done so or unless the Supreme Court orders otherwise. Failed to apply any provision. policy or rule contained in these Special ADR Rules resulting in substantial prejudice to the aggrieved party. the Supreme Court may for justifiable reasons grant an extension of thirty (30) days only within which to file the petition. the petitioner shall pay docket and other lawful fees to the clerk of court of the Supreme Court of P3.42.36. and necessarily. .39. Rule 19. or is prosecuted manifestly for delay. c. Proof of service of a copy thereof on the lower court concerned and on the adverse party shall be submitted together with the petition. . with the original copy intended for the court being indicated as such by the petitioner. Docket and other lawful fees. shall constitute sufficient ground for the Supreme Court to dismiss outright the petition. Rule 19.ADR (based on ATTY HIGUIT’S OUTLINE)-CHARMAGNE FERRER’S REVIEWER 78 E. Erred in upholding a final order or decision despite the lack of jurisdiction of the court that rendered such final order or decision. The following.00 and deposit the amount of P500. and the reasons or arguments relied on for the allowance of the petition. . . proof of service of petition. and d. the Supreme Court may require the elevation of the complete record of the case or specified parts thereof within fifteen (15) days from notice. elevation of records. Filing of petition with Supreme Court. (c) set forth concisely a statement of the matters involved.41. The Supreme Court may on its own initiative deny the petition on the ground that the appeal is without merit. deposit for costs.37.500. 2. the party praying for recognition and enforcement of a foreign arbitral award shall submit a statement under oath confirming the costs he has incurred only in the proceedings in the Philippines for such recognition and enforcement or setting-aside. Rule 21. Costs. The court shall award costs upon application of the respondent after the petition is denied and the court finds.The Republic of the Philippines.ADR (based on ATTY HIGUIT’S OUTLINE)-CHARMAGNE FERRER’S REVIEWER 79 Rule 20. Rule 20.2.000. .At the time the case is submitted to the court for decision.000. Filing fee for action to enforce as a counterpetition. Rule 20. that the amount of costs incurred is reasonable.If the Regional Trial Court dismisses the petition against the ruling of the arbitral tribunal on a preliminary question upholding its jurisdiction. . it shall also order the petitioner to pay the respondent all reasonable costs and expenses incurred in opposing the petition.1 above. as authorized under these Special Rules not covered under any of the foregoing provisions. .The filing fee for filing a petition to confirm or enforce.1.3. The court shall determine the reasonableness of the claim for attorney’s fees. which shall include the reasonable attorney’s fees of the prevailing party against the unsuccessful party. the party praying for confirmation or vacation of an arbitral award shall submit a statement under oath confirming the costs he has incurred only in the proceedings for confirmation or vacation of an arbitral award.00 PhP 30.A petition to enforce an arbitral award in a domestic arbitration or in an international commercial arbitration submitted as a petition to enforce and/or recognize an award in opposition to a timely petition to vacate or set aside the arbitral award shall require the payment of the filing fees prescribed in Rule 20. vacate or set aside arbitral award or for the enforcement of a mediated settlement agreement.000. Government’s exemption from payment of fees. The prevailing party shall be entitled to an award of costs which shall include the reasonable attorney’s fees of the prevailing party against the unsuccessful party. .if the award exceeds PhP 100.The costs of the ADR proceedings shall be borne by the parties equally unless otherwise agreed upon or directed by the arbitrator or arbitral tribunal.00 .6.00 .000. The court shall determine the reasonableness of the claim for attorney’s fees. The prevailing party shall be entitled to an award of costs with respect to the proceedings before the court. the party praying for recognition and enforcement or for setting aside an arbitral award shall submit a statement under oath confirming the costs he has incurred only in the proceedings for such recognition and enforcement or setting-aside.000.Unless otherwise agreed upon by the parties in writing.00 . Local governments and government controlled corporation with or with or without independent charters are not exempt from paying such fees.if the award does not exceed PhP 50. .00 . The costs shall include the attorney’s fees the party has paid or is committed to pay to his counsel of record.000.3. On recognition and enforcement of a foreign arbitral award. Deposit fee for mediated settlement agreements.000.000.4.000.00 . including applications for interim relief. The costs shall include attorney’s fees the party has paid or is committed to pay to his counsel of record. RULE 22: APPLICABILITY OF THE RULES OF COURT . Bill of Costs. Rule 20.00. The prevailing party shall be entitled to an award of costs.if the award does not exceed PhP 100. vacate or set aside an arbitral award in a domestic arbitration or in an international commercial arbitration. based on proof submitted by respondent. Filing fee for other proceedings.000. Rule 21. shall be P10.The filing fee for the filing of any other proceedings. Filing fee in petitions or counter-petitions to confirm or enforce.00 PhP 50. The court shall determine the reasonableness of the claim for attorney’s fees. .000. its agencies and instrumentalities are exempt from paying legal fees provided in these Special ADR Rules.1.000.5.Any party to a mediated settlement agreement who deposits it with the clerk of court shall pay a deposit fee of P500.00 PhP 40.00 The minimal filing fee payable in "all other actions not involving property" shall be paid by the petitioner seeking to enforce foreign arbitral awards under the New York Convention in the Philippines.At the time the case is submitted to the court for decision.000. which shall include reasonable attorney’s fees of the prevailing party against the unsuccessful party. Costs.000. On the dismissal of a petition against a ruling of the arbitral tribunal on a preliminary question upholding its jurisdiction. "Costs" shall include reasonable attorney’s fees. .4. or enforce a mediated settlement agreement shall be as follows: PhP 10. Rule 21. Rule 21. The costs shall include attorney’s fees the party has paid or is committed to pay to his counsel of record.000.if the award does not exceed PhP 20. .000. at the time the case is submitted to the court for decision.00. Rule 21.00 PhP 20. RULE 21: COSTS Rule 21.if the award does not exceed PhP 1. . . Such interim relief may be obtained only in a special proceeding for that purpose. the Special ADR Rules shall be applicable to all pending arbitration. against the action taken by the lender against the collateral. Applicability of Rules of Court. . other Rules or provisions hereof which are not affected thereby. however. for any reason. Online Dispute Resolution shall refer to all electronic forms of ADR including the use of the internet and other web or computed based technologies for facilitating ADR. After the arbitral tribunal is constituted.The Special ADR Rules shall take effect fifteen (15) days after its complete publication in two (2) newspapers of general circulation. shall be only provisional in nature. Any determination made by the court in that special proceeding pertaining to the merits of the controversy. Transitory Provision. . RULE 23: SEPARABILITY Rule 23.1 of these Special ADR Rules have either been included and incorporated in these Special ADR Rules or specifically referred to herein. In connection with the above proceedings.1. Applicability of an arbitration agreement in a contract of loan applies to the accessory contract securing the loan. mediation or other ADR forms covered by the ADR Act.1. may not prejudice or impair vested rights in accordance with law. By agreeing to refer any dispute under the contract of loan to arbitration. . An application to the court may also be made by the borrower against any action taken by the lender against the collateral securing the loan but only if the arbitral tribunal cannot act effectively to prevent an irreparable injury to the rights of such borrower during the pendency of the arbitral proceeding. Rule A. .ADR (based on ATTY HIGUIT’S OUTLINE)-CHARMAGNE FERRER’S REVIEWER 80 Rule 22.4. The Special ADR Rules. unless the parties agree otherwise. including the right of the lender to proceed against the collateral.1. apply with the appropriate court for interim relief against any such action of the lender. against such action of the lender.If. Rule A. RULE 26: EFFECTIVITY Rule 26.The provisions of the Rules of Court that are applicable to the proceedings enumerated in Rule 1.1. the borrower providing security for the payment of his loan who is aggrieved by the action taken by the lender against the collateral securing the loan may apply to the arbitral tribunal for relief. Foreclosure of pledge or extra-judicial foreclosure of mortgage not precluded by arbitration. Remedy of the borrower against an action taken by the lender against the collateral before the constitution of the arbitral tribunal.2. RULE 25: ONLINE DISPUTE RESOLUTION Rule 25. Scope of Online Dispute Resolution. The lender may likewise institute foreclosure proceedings against the collateral securing the loan prior to the commencement of the arbitral proceeding.3. the court shall stay its proceedings and defer to the jurisdiction of the arbitral tribunal over the entire controversy including any question regarding the right of the lender to proceed against the collateral. Rule 25. The commencement of the arbitral proceeding under the contract of loan containing an arbitration agreement shall not preclude the lender from availing himself of the right to obtain satisfaction of the loan under the accessory contract by foreclosure of the thing pledged or by extra-judicial foreclosure of the collateral under the real estate mortgage in accordance with Act No. Effectivity. if such action against the collateral is taken before the arbitral tribunal is constituted.Considering its procedural character. Remedy of borrower against action taken by the lender against the collateral after the arbitral tribunal has been constituted.The borrower providing security for the payment of his loan who is aggrieved by the action taken by the lender against the collateral securing the loan may. including a claim for damages. the lender who is secured by an accessory contract of real estate mortgage shall be deemed to have waived his right to obtain satisfaction of the loan by judicial foreclosure.1.After the arbitral tribunal is constituted. RULE 24: TRANSITORY PROVISIONS Rule 24. RULE A: GUIDELINES FOR THE RESOLUTION OF ISSUES RELATED TO ARBITRATION OF LOANS SECURED BY COLLATERAL Rule A.2. pending the constitution of the arbitral tribunal. any part of the Special ADR Rules shall be held unconstitutional or invalid. the Special ADR Rules shall govern the procedure for matters brought before the court involving Online Dispute Resolution. . 3135. Applicability of the Special ADR Rules to Online Dispute Resolution. Rule A.1. the Rules of Evidence shall be liberally construed to achieve the objectives of the Special ADR Rules. . . An arbitration agreement in a contract of loan precludes the borrower therein providing security for the loan from filing and/or proceeding with any action in court to prevent the lender from foreclosing the . shall continue to be in full force and effect. Separability Clause.An arbitration agreement in a contract of loan extends to and covers the accessory contract securing the loan such as a pledge or a mortgage executed by the borrower in favor of the lender under that contract of loan.Whenever applicable and appropriate. . his agreement to be bound by the arbitration agreement in the contract of loan shall pertain to disputes arising from or in connection with the relationship between the lender and the borrower as well as the relationship between the lender and such third-party including the right of the lender to proceed against the collateral securing the loan. Article 1. the following rules and regulations are hereby adopted as the Implementing Rules and Regulations of Republic Act no. executed by a person other than the borrower only if such third-party securing the loan has agreed in the accessory contract. otherwise known as the alternative Dispute Resolution Act of 2004" ("ADR Act"). 9285. 9285. IMPLEMENTING RULES AND REGULATIONS OF THE ALTERNATIVE DISPUTE RESOLUTION ACT OF 2004 (R. If any such action is filed in court. arbitration shall be decided by a panel of three arbitrators: one to be designated by the lender. . otherwise known as the "Alternative Dispute Resolution Act of 2004" (ADR Act"). DEPARTMENT CIRCULAR NO. the lender shall have the right provided in the Special ADR Rules to have such action stayed on account of the arbitration agreement. to be bound by such arbitration agreement. mortgage. the dispute shall be resolved by a panel of three arbitrators to be designated by the Appointing Authority under the law. But even in default of an agreement on the manner of appointing an arbitrator or constituting an arbitral tribunal in a multi-party arbitration. if the borrower and the third party securing the loan agree to designate a common arbitrator. Rule A. guaranty or suretyship. . the parties may agree to submit to arbitration before a sole arbitrator or a panel of three arbitrators to be appointed either by an Appointing Authority designated by the parties in the arbitration agreement or by a default Appointing Authority under the law. Arbitration involving a third-party provider of security. These Rules are promulgated to prescribe the procedures and guidelines for the implementation of the ADR Act. either directly or by reference.9285.A No. such as a pledge. the following Rules and Regulations (these "Rules") are hereby promulgated to implement the provisions of the ADR Act: Chapter 1 GENERAL PROVISIONS RULE 1 – Policy and Application Article 1. (b) To encourage and actively promote the use of Alternative Dispute Resolution ("ADR") as an important means to achieve speedy and impartial justice and declog court dockets. the Department of Trade and Industry. The arbitral tribunal shall have the authority to resolve the issue of the validity of the foreclosure of the thing pledged or of the extrajudicial foreclosure of the collateral under the real estate mortgage if the same has not yet been foreclosed or confirm the validity of such foreclosure if made before the rendition of the arbitral award and had not been enjoined. suspend or enjoin the lender from proceeding against the collateral securing the loan pending final determination by the arbitral tribunal of the dispute brought to it for decision under such contract of loan. 98 IMPLEMENTING RULES AND REGULATIONS OF THE ALTERNATIVE DISPUTE RESOLUTION ACT OF 2004. 1. It is the policy of the State: (a) To promote party autonomy in the resolution of disputes or the freedom of the parties to make their own arrangements to resolve their disputes.An arbitration agreement contained in a contract of loan between the lender and the borrower extends to and covers an accessory contract securing the loan.6. 9285) Pursuant to Section 52 of republic Act No. Unless otherwise expressly agreed upon by the thirdparty securing the loan.The arbitral tribunal. . In default of an agreement on the manner of appointing arbitrators or of constituting the arbitral tribunal in such multi-party arbitration. the other to be designated jointly by the borrower and the provider of security who have agreed to designate the same arbitrator.5. In this multi-party arbitration among the lender. but shall exclude disputes pertaining to the relationship exclusively between the borrower and the provider of security such as that involving a claim by the provider of security for indemnification against the borrower. and a third arbitrator who shall serve as the chairperson of the arbitral panel to be designated by the two party-designated arbitrators. the committee was composed of representatives from the Department of Justice. a representative from the ADR organizations. the President of the Integrated Bar of the Philippines.1 Purpose. Whereas. pursuant to Section 52 of Republic Act No.2 Declaration of policy. Wherefore. may upon submission of adequate security. the borrower and the third party securing the loan. the Department of the Interior and Local Government. Whereas. Rule A.ADR (based on ATTY HIGUIT’S OUTLINE)-CHARMAGNE FERRER’S REVIEWER 81 pledge or extra-judicially foreclosing the mortgage. the Secretary of Justice is directed to convene a Committee for the formulation of the appropriate rules and regulations necessary for the implementation of the ADR Act. Relief that may be granted by the arbitral tribunal. in aid of the arbitral proceeding before it. arbitrator or neutral evaluator of their dispute. Arbitration means a voluntary dispute resolution process in which one or more arbitrators. appointed in accordance with the agreement of the parties or these Rules. 8. resolve a dispute by rendering an award. adopt a symbol or encrypt a record or establish the authenticity of a record or term.4.5. participating. Award means any partial or final decision by an arbitrator in resolving the issue or controversy.6 Definition of Terms. or obtained under circumstances that would create reasonable expectation on behalf of the source that the information shall not be disclosed. initiating. (d) any ground for legal separation. (f) future legitimate. 2. (e) the jurisdiction of courts. and (d) To enlist active private sector participation in the settlement of disputes through ADR Article 1.3 Exception to the Application of the ADR Act. 5. 442. It shall include: (a) communication. (g) criminal liability. mini-trial or any combination thereof. (b) the civil status of persons. otherwise known as the "Labor Code of the Philippines. Authenticate means to sign. (c) the validity of marriage. (b) an oral or written statement made or which occurs during mediation or for purposes of considering. conducting. in which neutral third person participates to assist in the resolution of issues. Counsel means a lawyer duly admitted to the practice of law in the Philippines and in good standing who represents a party in any ADR process. Arbitration Agreement means agreement by the parties to submit to arbitration all or certain disputes which have arisen or which may arise between them in respect of a defined legal relationship. conciliators. including any memoranda. continuing or reconvening mediation or retaining a mediator. Article 1. Article 1. reports filed or submitted in arbitration or for expert evaluation. made in a dispute resolution proceeding. early neutral evaluation. The ADR provides /practitioners shall have the same civil liability for acts done in the performance of their official duties as that of public officers as provided in Section 38 (1). conciliator. 4. Including arbitration. and (c) pleadings. whether contractual or not. This is without prejudice to the rights of the parties to choose non-accredited individuals to act as mediator. Terms Applicable to All Chapters 1. . Chapter 9. manifestations. An arbitration agreement may be in the form of an arbitration clause in a contract or in the form of a separate agreement. relative to the subject of mediation or arbitration. its agencies and instrumentalities or private persons.ADR (based on ATTY HIGUIT’S OUTLINE)-CHARMAGNE FERRER’S REVIEWER 82 (c) To provide means for the use of ADR as an efficient tool and an alternative procedure for the resolution of appropriate cases. other than a court that is vested by law with quasi-judicial power or the power to resolve or adjudicate disputes involving the government. 6. 10. witness statements. RULE 2. and its Implementing Rules and Regulations. Book 1 of the Administrative Code of 1987. mediation. and (i) disputes referred to court-annexed mediation. For purposes of these Rules. as defined in the ADR Act. upon a clear showing of bad faith. conciliation. other than by adjudication of a presiding judge of a court or an officer of a government agency. the terms shall be defined as follows: A. ADR Provider means the Institutions or persons accredited as mediators. Alternative Dispute Resolution System means any process or procedures used to resolve a dispute or controversy. neutral evaluators or any person exercising similar functions in any Alternative dispute resolution system.Definition of Terms Article 1. expressly intended by the source not to disclosed. notes or work product of the neutral party or non-party participant. Government Agency means any governmental entity. Confidential Information means any information. 3. as a amended". 7. execute. The provisions of the Electronic Signature and ECommerce Act. malice or gross negligence. and its implementing Rules and Regulations shall apply to proceedings contemplated in the ADR Act. arbitrators. The provisions of the ADR Act shall not apply to the resolution or settlement of the following: (a) labor disputes covered by Presidential Decree No. 9. Electronic Signature and E-Commerce Act. Liability of ADR Providers/Practitioners. oral or written. office or officer. (h) those disputes which by law cannot be compromised. Court means Regional Trial Court Except insofar as otherwise defined under Model Law. motions. 5. International Arbitration means an arbitration where: (a) the parties to an arbitration agreement have. Institutional Mediation means any mediation process conducted under the rules of a mediation institution. Arbitral Tribunal (under the Model Law) means a sole arbitrator or a panel of arbitrators. retrievable in a perceivable form. B. Mediation means a voluntary process in which a mediator. 11. the arbitration agreement. licensing. after such court has acquired jurisdiction of the dispute. Court of Appeals and Supreme Court). the Regional Trial Court. 6. insurance. the default appointment of an arbitrator shall be made by the National President of the Integrated Bar of the Philippines (IBP) or his /her duly authorized representative. Commercial Arbitration means an arbitration that covers matters arising from all relationships of a commercial nature. Roster means a list of persons qualified to provide ADR services as neutrals or to serve as arbitrators. 3. 4. consulting. distribution agreements. financing. Model Law means the Model on International Commercial Arbitration adopted by the United Nations Commission on International Trade Law on 21 June 1985. Court (under the Model Law) means a body or organ of the judicial system of the Philippines (i. engineering. 1. Ad hoc Mediation means any mediation other than institutional or court-annexed. 15. Convention Award means a foreign arbitral award in a Convention State. 8. 3. carriage of goods or passengers by air. Certified Mediator means a mediator certified by the Office for ADR as having successfully completed its regular professional training program. sea rail or road. but are not limited to. Terms and Applicable to the Chapter Mediation 1. Proceedings means judicial. Relationships of a commercial nature include. 12. 7. 2. administrative or other adjudicative process. who participates in a mediation proceeding as a witness. selected by the disputing party voluntary agreement regarding a dispute. Record means information written on a tangible medium or stored in an electronic or other similar medium. or the regular arbitration institution under whose rules the arbitration is agreed to be conducted. Appointing Authority as used in the Model Law shall mean the person or institution named in the arbitration agreement as the appointing authority. 7. resource person or expert. investment. conferences and discovery. Arbitration means any arbitration whether or not administered by a permanent arbitration institution. 6. or . joint venture and other forms of industrial or business cooperation. factoring. their places of business in different states. Where the parties have agreed to submit their dispute to institutional arbitration rules and unless they have agreed to a different procedure. Court-Annexed Mediation means mediation process conducted under the auspices of the court and in accordance with Supreme Court approved guidelines. Mediation Party means a person who participates in a mediation and whose consent is necessary to resolve the dispute. or (b) 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. Non-Party Participant means a person. other than a party or mediator. banking. whether contractual or not.. commercial representation or agency. including related pre-hearing or post hearing motions. Convention State means a state that is a member of the New York Convention. (ii) any place where a substantial part of the obligations of the commercial relationship is to be performed or the place with the subject matter of the dispute is most closely connected. Terms Applicable to the Chapter on International Commercial Arbitration 4.ADR (based on ATTY HIGUIT’S OUTLINE)-CHARMAGNE FERRER’S REVIEWER 83 13. 2009. 8. In ad hoc arbitration. Special ADR Rules means the Special Rules of Court on Alternative Dispute Resolution issued by the Supreme Court on September 1. leasing. construction of works. 9. at the time of the conclusion of that agreement.e. the following commercial transactions: any trade transaction for the supply or exchange of goods or services. C. they shall be deemed to have agreed to the procedure under such arbitration rules for the selection and appointment of arbitrators. 14. or pursuant to . 5. Mediator means a person who conducts mediation. Court-Referred Mediation means mediation ordered by a court to be conducted in accordance with the agreement of the parties when an action is prematurely commenced in violation of such agreement. 2. Ad hoc Arbitration means arbitration administered by an arbitrator and/or the parties themselves. who shall be appointed by the President of the Philippines. (b) if a party does not have a place of business. Terms Applicable to the Chapter on Domestic Arbitration 1.71. An arbitration administered by an institution shall be regarded as ad hoc arbitration if such institution is not a permanent or regular arbitration institution in the Philippines. 2. 5. motion. CHAPTER 2 THE OFFICE FOR ALTERNATIVE DISPUTE RESOLUTION RULE 1. Arbitration means a voluntary dispute resolution process in which one or more arbitrators. unless otherwise specified in these Rules. 7. Challenge. 10. the place of business is that which has the closest relationship to the arbitration agreement. Day means calendar day. 8. Appointing Authority in Ad Hoc Arbitration means. (a) if a party has more than one place of business. 11. 3. which is not a Convention State. Respondent means the person/s against whom the claimant commence/s arbitration. order. For this purpose: 10. 3. board or committee of arbitrators. notice. 14. before which the parties seek a negotiated settlement. 11.1. Terms Applicable to the Chapter on Other ADR Forms 1. Written communication means the pleading. manifestation. the National President of the IBP or his/her duly authorized representative. Early Neutral Evaluation means an ADR process wherein parties and their lawyers are brought together early in the pre-trial phase to present summaries of their cases and to receive a non-binding assessment by an experienced neutral person. resolve a dispute by rendering an award. with expertise in the subject matter or substance of the dispute. Appointing Authority Guidelines means the set of rules approved or adopted by an appointing authority for the making of a Request for Appointment. 9. 13. with or without the presence of a neutral third person. 9. Non-Convention Award means a foreign arbitral ward made in a state. There is hereby established the OADR as an agency attached to the Department of Justice.ADR (based on ATTY HIGUIT’S OUTLINE)-CHARMAGNE FERRER’S REVIEWER 84 (c) the parties have expressly agreed that the subject matter of the arbitration agreement relates to more than one country. It shall have a Secretariat and shall be headed by an Executive Director. Representative is a person duly authorized in writing by a party to a dispute. 2. a person in his/her employ or any other person of his/her choice. reference is to be made to his/her habitual residence. Request for Appointment means the letter-request to the appointing authority of either or both parties for the appointment of arbitrator/s or of the two arbitrators first appointed by the parties for the appointment of the third member of an arbitral tribunal. in the absence of an agreement. Arbitral Tribunal means a sole arbitrator or a panel. duly authorized to represent said party in the arbitration proceedings. which is registered as a domestic corporation with the Securities and Exchange Commission (SEC) and engaged in. Non-Convention State means a state that is not a member of the New York Convention. Court means. award and any other document or paper submitted or filed with the arbitral tribunal or delivered to a party. D. taking into . Claimant means a person/s with a claim against another and who commence/s arbitration against the latter. 6. who could be a counsel. Mini-trial means a structured dispute resolution method in which the merits of a case are argued before a panel comprising of senior decision-makers. a Regional Trial Court. E. Institutional Arbitration means arbitration administered by an entity. 12. New York Convention means the United Nations Convention of the Recognition and Enforcement of Foreign Arbitral Awards approved in 1958 and ratified by the Philippine Senate under Senate Resolution No. 4.Office for Alternative Dispute Resolution (OADR) Article 2. Establishment of the Office for Alternative Dispute Resolution. Appointed in accordance with the agreement of the parties or these Rules. among others. Domestic Arbitration means arbitration that is not international as defined in Article 1(3) of the Mode Law. termination of the Mandate of Arbitrator/s and for taking action thereon. arbitration of disputes in the Philippines on a regular and permanent basis. Mediation-Arbitration or Med-Arb is a two-step dispute resolution process involving mediation and then followed by arbitration. strengthen and improve ADR practices in accordance with international professional standards.5. issuance of certifications of training to ADR practitioners and ADR service providers who have undergone the professional training provided by the OADR. develop and expand the use of ADR in the private and public sectors through information. arbitration or any combination thereof and other ADR forms as a means of achieving speedy and efficient means of resolving all disputes and to help in the promotion. rules and regulation. rules and regulations. mediation) and experience in ADR of the ADR providers/practitioners. and the coordination of the development. The list or roster shall include the addresses. policy formulation. (b) To conduct seminars. The OADR shall have the following staff and service divisions. and secure information about their respective administrative rules/procedures.g.ADR (based on ATTY HIGUIT’S OUTLINE)-CHARMAGNE FERRER’S REVIEWER 85 consideration the recommendation of the Secretary of Justice. (d) To establish training programs for ADR providers/practitioners. articles.g. Composition of the Advisory Council.3. among others. who have undergone training by the OADR. (f) To compile a list or roster of foreign or international ADR providers/practitioners. articles and other information about ADR in the Philippines and elsewhere may be stored and accessed. (c) To establish an ADR library or resource center where ADR laws. (a) To promote.4. both in the public and private sectors. grants and other assistance from local and foreign sources. the promotion of the importance and public acceptance of mediation. jurisprudence. and local and foreign government offices and agencies and international organizations. contact numbers. (e) To certify those who have successfully completed the regular professional training programs provided by the OADR. (c) To recommend to Congress needful statutory changes to develop. or by such training providers/institutions recognized or certified by the OADR as performing functions in any ADR system. The list or roster shall include the addresses. for training and certifications of ADR providers. conferences and other public fora and publish proceedings of said activities and relevant materials/information that would promote. books. There is also created an Advisory Council composed of a representative from each of the following: (a) Mediation profession. symposia. contact numbers. ADR service/s rendered (e. development and expansion of the use of ADR. Article 2. Article 2. and (h) To exercise such other powers as may be necessary and proper to carry into effect the provisions of the ADR Act. e-mail addresses. The OADR shall have the following functions. Powers of the OADR. develop and expand the use of ADR. conduct of training in accordance with such standards. and to undertake periodic and continuing training programs for arbitration and mediation and charge fees on participants. jurisprudence. study and evaluate the use of ADR by the private and public sectors for purposes of. and (g) To perform such other functions as may be assigned to it. arbitration. (e) To compile and publish a list or roster of ADR providers/practitioners. RULE 2 – The Advisory Council (d) To make studies on and provide linkages for the development. mediation) and experience in ADR of the ADR providers/practitioners. (g) To accept donations. (b) To monitor. Functions of the OADR. e-mail addresses.2. implementation. (a) To act as appointing authority of mediators and arbitrators when the parties agree in writing that it shall be empowered to do so. monitoring and evaluation of government and private sector ADR programs. implementation. (f) To charge for services rendered such as. It may do so in conjunction with or in cooperation with the IBP. education and communication. arbitration. (d) Records and Library Division – shall be charged with the establishment and maintenance of a central repository of ADR laws. books. . ADR service/s rendered (e. Article 2. (b) Public information and Promotion Division – shall be charged with the dissemination of information. among others. Divisions of the OADR. among others: (a) Secretariat – shall provide necessary support and discharge such other functions and duties as may be directed by the Executive Director. private ADR organizations. problems encountered and how they were resolved. The OADR shall have the following powers. conciliation. (c) Training Division – shall be charged with the formulation of effective standards for the training of ADR practitioners. and other information about ADR in the Philippines and elsewhere. monitoring and evaluation of government and private ADR programs Article 2. Scope of Application. A party may petition a court before which an action is prematurely brought in a matter which is the subject of a mediation agreement. upon being informed of such fact. economical and amicable resolution of disputes in accordance with principles of integrity of determination by the parties and the policy that the decision-making authority in the mediation process rests with the parties. Freedom to Select mediator. shall choose a Chairman from among themselves. the policy of fostering prompt. training and experience are known to and accepted by the parties. (iv) continuing with the process would cause significant harm to a non-participating person or to the public. whether ad hoc or institutional. (ii) the parties' agreement would be illegal or involve the commission of a crime. and . These Rules shall also apply to all cases pending before an administrative or quasi-judicial agency that are subsequently agreed upon by the parties to be referred to mediation. Article 2. The OADR may be requested to inform the mediator of his/her selection. or upon call by the Executive Director. Role of the Advisory Council. consideration must be given to the need to promote candor of parties and mediators through confidentiality of the mediation process. (iii) continuing the dispute resolution would give rise to an appearance of impropriety. Refusal or Withdrawal of Mediator. (b) The mediator does not have the qualifications. (d) IBP. training and experience to enable him/her to meet the reasonable expectations of the parties. Article 3. at least once every two (2) months. (d) If continuation of the process would violate any ethical standards. The Council shall meet regularly. to refer the parties to mediation in accordance with the agreement of the parties.2. if the mediator is satisfied that: (i) one or more of the parties is/are not acting in good faith. the parties may. and (h) In any of the following instances.6. other than court-annexed mediation and only in default of an agreement of the parties on the applicable rules. operational and other relevant matters.3. CHAPTER 3 MEDIATION RULE 1 – General Provisions Article 3. The Advisory Council shall advise the Executive Director on policy. It is not required that a mediator shall have special qualifications by background or profession unless the special qualifications of a mediator shall : (a) maintain the continually upgrade his/her professional competence in mediation skills. RULE 2. Replacement of Mediator. (v) continuing discussion would not be in the best interest of the parties. (b) ensure that his/her qualifications. (c) ADR organizations. select another mediator. their minor children or the dispute resolution process.ADR (based on ATTY HIGUIT’S OUTLINE)-CHARMAGNE FERRER’S REVIEWER 86 (b) Arbitration profession.4. (e) If the safety of any of the parties would be jeopardized. or RULE 3 – Ethical Conduct of a Mediator Article 3. If the mediator selected is unable to act as such for any reason.5. and (e) Academe. A mediator may refuse from acting as such. The parties may request the OADR to provide them with a list or roster or the resumes of its certified mediators. The parties have the freedom to select mediator. (f) If the mediator is unable to provide effective services. if at least one party so requests. In applying and construing the provisions of these Rules.1.Selection of a Mediator Article 3. who shall be appointed by the Secretary of Justice upon the recommendation of the OADR Executive Director. (g) In case of conflict of interest. Article 3. Statement of Policy. (c) Where the mediator's impartially is in question. not later than the pre-trial conference or upon the request of both parties thereafter. Article 3. These Rules apply to voluntary mediation. withdraw or may be compelled to withdraw from mediator proceedings under the following circumstances: (a) If any of the parties so requests the mediator to withdraw.6 Competence. The members of the Council. the available options.12 Promotion of Respect and Control of Abuse of Process. or fully participate. or (b) Where appropriate and where either or both parties are not represented by counsel. A mediator shall discuss issues of confidentiality and the extent of confidentiality provided in any private sessions or caucuses that the mediator holds with a party. The mediatorcle 3. to limit abuses of the mediation process. Separation of Mediation from Counseling and Legal Advice. (i) refrain from giving legal or technical advice and otherwise engaging in counseling or advocacy. which is contingent upon the results of the mediation or the amount of the settlement. and (a) Before accepting a mediation. a mediator may either: (i) limit the scope of the mediation proceedings in a manner consistent with the party's ability to participate.12 Promotion of Respect and Control of Abuse of Process. including a financial or personal interest in the outcome of the mediation and any existing or past relationship with a party of foreseeable participant in the mediation.8. . A mediator shall maintain impartiality. (a) A mediator shall make reasonable efforts to ensure that each party understands the nature and character of the mediation proceeding including private caucuses. (a) A mediator shall fully disclose and explain to the parties the basis of cost. Article 3. and (ii) suggest that the parties seek independent legal and/or technical advice before a settlement agreement is signed. (a) Except in evaluative mediation or when the parties so request. Solicitation or Acceptance of any Gift. a mediator shall. Article 3. training and experience enable him/her to meet the reasonable expectations of the parties and shall not hold himself/herself out or give the impression that he/she does not have. and (ii) disclose to the mediation parties any such fact known or learned as soon as practical before accepting a mediation. an individual who is requested to serve as mediator shall disclose his/her qualifications to mediate a dispute.ADR (based on ATTY HIGUIT’S OUTLINE)-CHARMAGNE FERRER’S REVIEWER 87 (ii) terminate the mediation proceedings. who is not represented by counsel. a mediator who also practices another profession shall not establish a professional relationship in that other profession with one of the parties. (c) A mediator shall not enter into a fee agreement. Article 3. and for a reasonable time under the particular circumstance. (b) If a mediator learns any fact described in paragraph (a) of this Article after accepting a mediation. Article 3.9. solicit. the alternatives to nonsettlement. the issues. an individual who is requested to serve as a mediator shall: (ii) abstain from expressing his/her personal opinion on the rights and duties of the parties and the merits of any proposal made. No mediator or any member of a mediator’s immediate family or his/her agent shall request. Article 3. and shall take reasonable steps. Upon the request of a mediation party.11. (b) The mediator who withdraws from the mediation shall return to the parties any unearned fee and unused deposit. the mediation proceedings for any reason. A mediator shall keep in utmost confidence all confidential information obtained in the course of the mediation process. (c) serve only when his/her qualifications. (i) recommend that the parties seek outside professional advice to help them make informed decision and to understand the implication of any proposal. fees and charges. is unable to understand. Article 3. a mediator shall: Article 3. of the settle mentcost ablish a professional relationship I shall encourage mutual respect between the parties. Confidentiality. in a substantially and factually related matter. the mediator shall disclose it as soon as practicable to the mediation parties. Charging of Fees.10. (b) A mediator shall recognize and put in mind that the primary responsibility of resolving a dispute and the shaping of a voluntary and uncoerced settlement rests with the parties. (i) make an inquiry that is reasonable under the circumstances to determine whether there are known facts that a reasonable individual would consider likely to affect the impartiality of the mediator.13. Consent and Self-Determination. receive or accept any gift or any type of compensation other than the agreed fee and expenses in connection with any matter coming before the mediator. and/or recommend that the party obtain appropriate assistance in order to continue with the process. (c) without the consent of al parties.7 Impartially. or any person or entity. subject to the principle of self-determination. and that each party is free and able to make whatever choices he/she desires regarding participation in mediation generally and regarding specific settlement options. If a mediator believes that a party. Article 3. its costs and benefits. consists of the following stages: (aa) The substantive issues involved in the dispute and their prioritization in terms of importance to his/her client’s real interests and needs. concerns and needs. Role of Counsel. (c) may ask for a recess in order to give advice or suggestions to his/her client in private. (dd) The possible options for settlement but stressing the need to be open-minded about other possibilities. (iv) summary of issues. (v) generation and evaluation of options.. other than the parties. (a) The lawyer shall view his/her role in the mediation as a collaborator with the other lawyer in working together toward the common goal of helping their clients resolve their differences to their mutual advantage. a party may designate a lawyer or any other person to provide assistance in the mediation. (d) shall assist his/her client and the mediator put in writing the terms of the settlement agreement that the parties have entered into. may attend only with the consent of all the parties. (b) The mediator shall held the parties reach a satisfactory resolution to their dispute but has no authority to impose a settlement on the parties. and facilitated by a mediator. (b) shall impress upon his/her client the importance of speaking for himself/herself and taking responsibility for making decisions during the negotiations within the mediation process. (i) opening statement of the mediator (bb) The study of other party’s position in relation to the issues with a view to understanding the underlying interests. the lawyer shall confer and discuss with his/her client the following: (i) The mediation process as essentially a negotiation between the parties assisted by their respective lawyers. (f) the mediation shall be closed: . Except as otherwise provided by the ADR Act or by these Rules.15. A party maybe represented by an agent who must have full authority to negotiate and settle the dispute. That lawyers shall see to it that the terms of the settlement agreement are not contrary to law. (ii) The substance of the upcoming mediation such as. its advantages and benefits. in general. worst and most likely alternative to a non-negotiated settlement. (cc) The information or facts to be gathered or sought from the other side or to be exchanged that are necessary for informed decision-making. (iii) exchange by the parties. (b) The lawyer shall encourage and assist his/her client to actively participate in positive discussions and cooperate in crafting an agreement to resolve their dispute. the clients heightened role in mediation and responsibility for its success and explaining the role of the lawyer in mediation proceedings. The lawyer.14. (ii) individual narration by the parties. morals. Articles to be Considered in the Conduct of Mediation. (d) The mediation process shall. (a) The mediator shall not make untruthful or exaggerated claims about the dispute resolution process. their representatives and mediator. public order or public policy.16. Designation of Counsel or Any Person to Assist Mediation. Article 3. stressing it its difference from litigation. good customs. Article 3. fears. if he/she perceives that his/her client is unable to bargain effectively. (c) The parties shall personally appear for mediation and may be assisted by a lawyer. A waiver of this right shall be made in writing by the party waiving it.ADR (based on ATTY HIGUIT’S OUTLINE)-CHARMAGNE FERRER’S REVIEWER 88 RULE 4 – Role of Parties and their Counsels Article 3. as well as the client’s greater personal responsibility for the success of mediation in resolving the dispute. A waiver of participation or legal representation may be rescinded at any time.17. (a) shall give support to the mediator so that his/her client will fully understand the rules and processes of mediation. its outcome or the mediator’s qualifications and abilities during the entire mediation process. and (vi) closure (e) The mediation proceeding shall be held in private. RULE 5 – Conduct of Mediation (c) The lawyer must assist his/her client to comprehend and appreciate the mediation process and its benefits. (d) In preparing for participation in mediation. Other Matters which the Counsel shall do to Assist Mediation. and (ee) The best. Person. otherwise know as "The Arbitration Law". evidence or information that is otherwise admissible or subject to discovery does not become inadmissible or protected from discovery solely by reason of its use in a mediation. notwithstanding the provisions of Executive Order No. or non-party participant may refuse to disclose and may prevent any other person from disclosing a confidential information. the parties. (f) A mediator may not be called to testify to provide confidential information gathered in mediation. 876. RULE 9 – Confidentiality of Information Article 3. However. (ii) by the withdrawal of any party from mediation. A mediator who is wrongfully subpoenaed shall be . Confidentiality of Information. the place of mediation shall be any place convenient and appropriate to all parties. 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 counsels.21. RULE 7 – Effect of Agreement to Submit Dispute to Mediation Under Institutional Rules Article 3. (d) In such an adversarial proceeding. (v) any person hired or engaged in connection with the mediation as secretary. (iv) the non-party participants (c) If the parties agree. Where there is a need to enforce the settlement agreement. and (e) The protections of the ADR Act shall continue to apply even if a mediator is found to have failed to act impartially. whether judicial or quasi-judicial. Agreement of Parties on the Place of Mediation. If any. summarily to hear the petition. Failing such agreement. (ii) the mediator or mediators. (c) Confidential information shall not be subject to discovery and shall be inadmissible in any adversarial proceeding.19 Agreement to Submit a Dispute to Mediation by an Institution. The mediator shall certify that he/she explained the contents of the settlement agreement to the parties in a language known to them. or (c) in the National Capital Judicial Region. (b) if any of the parties is an individual. The parties and their respective counsels shall endeavor to make the terms and condition of the settlement agreement complete and to make adequate provision for the contingency of breach to avoid conflicting interpretations of the agreement. The parties are free to agree on the place of mediation. the court shall proceed (vi) any other person who obtains or possesses confidential information by reason of his/her profession. and (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. where any of those individuals resides. their respective counsels and non-party participants to abide by such rules. stenographer. 1985. if any. mediator. a petition may be filed by any of the parties with the same court in which case. and by the mediator. (iii) by the written declaration of the mediator that any further effort at mediation would not be helpful RULE 6 – Place of Mediation Article 3. in accordance with the Special ADR Rules.ADR (based on ATTY HIGUIT’S OUTLINE)-CHARMAGNE FERRER’S REVIEWER 89 (i) by the execution of a settlement agreement by the parties. clerk or assistant. RULE 8 – Enforcement of Mediated Settlement Agreement Article 3. (b) The parties and their respective counsels. Operative Principles to Guide Mediation. 1008. Further. other wise known as the "Construction Industry Arbitration Law" for mediated disputes outside the Construction Industry Arbitration Commission. s. (iii) the counsel for the parties. the settlement agreement may be jointly deposited by the parties or deposited by one party with prior notice to the other party/ties with the Clerk of Court of the Regional Trial Court (a) where the principal place of business in the Philippines of any of the parties is located. an agreement to submit a dispute to mediation under institutional mediation rules shall be deemed to include an agreement to have such rules govern the mediation of the dispute and for the mediator. Information obtained through mediation proceedings shall be subject to the following principles and guidelines: (a) Information obtained through mediation shall be privileged and confidential (b) A party. the following persons involved or previously involved in a mediation may not be compelled to disclosed confidential information obtained during the mediation: (i) the parties to the dispute. shall sign the settlement agreement.18. An agreement to submit a dispute to mediation by an institution shall include an agreement to be bound by the internal mediation and administrative policies of such institution.20. (vi) sought or offered to prove or disapprove a claim or complaint of professional misconduct or malpractice filed against a party. stipulate that the settlement agreement shall be sealed and not disclosed to any third party including the court.21 (Confidentiality of Information) to bar disclosure of the rest of the information necessary to a complete understanding of the previously disclosed information. Fees and Cost of Ad hoc Mediation. In default thereof. (c) A mediator may not be compelled to provide evidence of a mediation communication or testify in such proceeding. (a) A privilege arising from the confidentiality of information may be waived in a record or orally during a proceeding by the mediator and the mediation parties. (c) A person who discloses confidential information shall be precluded from asserting the privilege under Article 3. Article 3. (b) With the consent of the mediation parties. If a person suffers loss or damage as a result of the disclosure of the confidential information. attempt to commit. shall not apply to a proceeding to enforce or set aside the settlement agreement. to the public. or (b) as permitted to be disclosed under Article 3. or commit a crime. Article 3. In default of agreement of the parties as to the amount and manner of payment of mediation’s cost and fees. a privilege arising from the confidentiality of information may likewise be waived by a non-party participant if the information is provided by such nonparty participant. Non-Reporting or Communication by Mediator. however. or where a settlement was reached.26. neglect.23 (Exception to the Privilege of Confidentiality of Information). Such stipulation. The parties may. or is required by law to be open. abandonment or exploitation in a proceeding in which a public agency is protecting the interest of an individual protected by law. by an agreement in writing. or conceal an ongoing crime or criminal activity. evaluation. the parties are free to make their own arrangement as to mediation cost and fees. Waiver of Confidentiality. (a) There is no privilege against disclosure under Article 3. the same shall be determined in accordance with the applicable internal rules of the mediation service . (a) In institutional mediation.25. In ad hoc mediation. or representative of a party based on conduct occurring during a mediation.24. that there is a need for the evidence that substantially outweighs the interest in protecting confidentially. the schedule of cost and fees to be approved by the OADR shall be followed. assessment. after a hearing in camera. admissible for any other purpose. non-party participant. or any other mediation communication. that the party seeking discovery of the proponent of the evidence has shown that the evidence is not otherwise available. mediation cost shall include the administrative charges of the mediation institution under which the parties have agreed to be bound.23.21 in the following instances: (i) in an agreement evidenced by a record authenticated by all parties to the agreement. if any. only the portion of the communication necessary for the application of the exception for non-disclosure may be admitted. or (ii) a proceeding to prove a claim or defense that under the law is sufficient to reform or avoid a liability on a contract arising out of the mediation. but this exception does not apply where a child protection matter is referred to mediation by a court or where a public agency participates in the child protection mediation. Fees and Cost of Institutional Mediation. recommendation.22.ADR (based on ATTY HIGUIT’S OUTLINE)-CHARMAGNE FERRER’S REVIEWER 90 reimbursed the full cost of his/her attorney’s fees and related expenses.21 to the extent that the communication prejudices another person in the proceeding and it is necessary for the person prejudiced to respond to the representation or disclosure. (iii) a threat or statement of a plan to inflict bodily injury or commit a crime of violence. RULE 10 – Fees and Cost of Mediation Article 3. Exceptions to the Privilege of Confidentiality of information. (d) If a mediation communication is not privileged under an exception in sub-section (a) or (b) hereof. (iv) intentionally used to plan a crime. The admission of a particular evidence for the limited purpose of an exception does not render that evidence. except: (a) to state that the mediation occurred or has terminated. mediator’s fees and associated expenses. Article 3. (d) A person who discloses or makes a representation about a mediation is precluded from asserting the privilege mentioned in Article 3. and the mediation communication is sought or offered in: (i) a court proceeding involving a crime or felony. (v) sought or offered to prove or disprove abuse. he/she shall be entitled to damages in a judicial proceeding against the person who made the disclosure. (b) If a court or administrative agency finds. Article 3. finding or other communication regarding a mediation to a court or agency or other authority that may make a ruling on a dispute that is the subject of a mediation. A mediator may not make a report. (ii) available to the public or made during a session of a mediation which is open. Court or Other Authority for Certain Functions of Arbitration Assistance and Supervision. no court shall intervene except where so provided in the ADR Act.1.25 (Default of a Party) and paragraphs (b) (i) of Article 4.14 (Failure or Impossibility to Act) shall be performed by the appointing authority as defined in Article 1. Any party who knows that any provision of this Chapter from which the parties may derogate or any requirement under the arbitration agreement has not been complied with and yet proceeds with the arbitration without stating the objections for such non-compliance without undue delay or if a time limit is provided therefor. in interpreting this Chapter. to make that determination. (b) The functions referred to in paragraph (c) of Article 4. (a) This Chapter applies to international commercial arbitration. (c) This Chapter shall not affect any other law of the Philippines by virtue of which certain disputes may not be submitted to arbitration or may be submitted to arbitration only according to provisions other than those of the ADR Act. Article 4. experience and stature of mediators.3. and (iii) the training. Extent of Court Intervention. Article 4. (a) Unless otherwise agreed by the parties: (i) any written communication is deemed to have been received if it is delivered to the addressee personally or at his/her place of business. it also applies to a defense to such counter-claim. Resort to Philippine courts for matters within the scope of the ADR Act shall be governed by the Special ADR Rules. refers to a claim. if none of these can be found after making a reasonable inquiry.16 (c) (Competence of Arbitral Tribunal to Rule on its Jurisdiction). (b) A mediation service provider may determine such mediation fee as is reasonable taking into consideration the following factors. "International Commercial Arbitration: Analytical Commentary on Draft Text identified by reference number A/CN. leaves the parties free to determine a certain issue. Article 4.11 (Appointment of Arbitrators) and paragraph (c) of Article 4. Article 4. 9/264". The appointment of an arbitrator is not subject to appeal or motion for reconsideration. (b) In interpreting this Chapter. and where it refers to a defense. Article 4.13 (Challenge Procedure) and paragraph (a) of Article 4. including an institution. habitual residence or mailing address. Receipt of Written Communications. Waiver of Right to Object. within such period of time.32 (Termination of Proceedings). Resort may be made to the travaux preparatoires and the Report of the Secretary-General of the United Nations Commission on International Trade Law dated March 1985 entitled. (c) Moreover. (a) International commercial arbitration shall be governed by the Model Law on International Commercial Arbitration. which shall be governed by the Rules of Court. second paragraph of Article 4. In matters governed by this Chapter. (ii) the communication is deemed to have been received on the day it is so delivered.5. Rules of Interpretation. (a) The functions referred to in paragraphs (c) and (d) of Article 4. among others: (f) Where a provision of this Chapter.4. such freedom includes the right of the parties to authorize a third party. other than in paragraph (a) of Article 4.ADR (based on ATTY HIGUIT’S OUTLINE)-CHARMAGNE FERRER’S REVIEWER 91 providers under whose rules the mediation is conducted.6. CHAPTER 4 INTERNATIONAL COMMERCIAL ARBITRATION RULE 1 – General Provisions Article 4. (d) Where a provision of this Chapter. (e) Where a provision of this Chapter refers to the fact that the parties have agreed or that they may agree or in any other way refers to an agreement of the parties.6 C1.34 . (ii) the number of hours spent in mediation. except the Rules applicable to the substance of the dispute. habitual residence or mailing address by registered letter or any other means which provides a record of the attempt to deliver it. the court shall have due regard to the policy of the law in favor of arbitration and the policy of the Philippines to actively promote party autonomy in the resolution of disputes or the freedom of the parties to make their own arrangement to resolve their dispute. (i) the complexity of the case. subject to any agreement in force between the Philippines and other state or states. it also applies to a counter-claim. such agreement includes any arbitration rules referred to in that agreement. unless the latter shall fail or refuse to act within thirty (30) days from receipt of the request in which case the applicant may renew the application with the court. regard shall be had to the international origin of the Model Law and to the need for uniformity in its interpretation. (b) This Chapter applies only if the place or seat of arbitration is the Philippines and in default of any agreement of the parties on the applicable rules. a written communication is deemed to have been received if it is sent to the addressee’s last known place of business. shall be deemed to have waived the right to object.2. (b) The provisions of this Article do not apply to communications in court proceedings. Scope of Application. implement or enforce a petition for an interim measure. inoperative or incapable of being performed.13 (Challenge Procedure). including an institution. Any party may request the appointing authority to take the necessary measure to appoint an arbitrator. telex. Article 4. before the constitution of the arbitral tribunal or during arbitral proceedings.35 (Recognition and Enforcement).9 (Arbitration Agreement and Interim Measures by Court). (d) Where. if the parties are unable to agree on the arbitrator. or in an exchange of statements of claim and defense in which the existence of an agreement is alleged by one party and not denied by another. arbitral proceedings may nevertheless be commenced or continued. if at least one party so requests of both parties thereafter. The Arbitration agreement. subject to provisions of paragraphs (d) and (e) of this Article. Article 4. The rules of interim or provisional relief provided for in paragraph ( c ) of Article 4. upon request of a party.27 (Court Assistance in Taking Evidence).Arbitration Agreement Article 4. (b) To the extent that the arbitral tribunal has no power to act or is unable to act effectively. one or more of whom are parties to an arbitration agreement. shall be in writing. or if the two (2) arbitrators fail to agree on the third arbitrator within thirty days (30) days of their appointment shall be made. (c) Failing such agreement: (i) in an arbitration with three (3 ) arbitrators. (i) a party fails to act as required under such procedure. and an award may be made.7 Definition and Form of Arbitration Agreement. RULE 3 – Composition of Arbitral Tribunal Article 4. Article 4. 11 (Appointment of Arbitrators).8 Arbitration Agreement and Substantive Claim Before Court. unless otherwise agreed by the parties. An agreement is in writing if it is contained in a document signed by the parties or in an exchange of letters. on the sole ground that the Petition is merely an ancillary relief and the principal action is pending with the arbitral tribunal. RULE 2. shall be performed by the appropriate Regional Trial Court. and the two (2) arbitrators thus appointed shall appoint the third arbitrator.6 A4. and in the manner indicated in . if any party fails to appoint the arbitrator within thirty (30) days of receipt of a request to do so from the other party.11. Appointment of Arbitrators. upon request of a party. or two arbitrators. telegrams or other means of telecommunication which provide a record of the agreement. Article 4. The reference in a contract to a document containing an arbitration clause constitutes an arbitration agreement provided that the contracts is writing and the reference is such as to make that clause part of the contract. (b) Where an action referred to in the previous paragraph has been brought . or (ii) the parties . are unable to reach an agreement expected of them under such procedure. as defined in Articles 1. Article 4. (c) Where the action is commenced by or against multiple parties. Article 4. (a) A court before which an action is brought in a matter which is the subject of an arbitration agreement shall. or in an exchange of statements of claim and defense in which the existence of an agreement. Article 4. an interim measure of protection and for a court to grant such measure. fails to perform any function entrusted to it under such procedure. unless . by the appointing authority. Article 4. the court shall refer to arbitration those parties who are bound by the arbitration agreement although the civil action may continue as to those who are not bound by such arbitration agreement.17 of these Rules shall be observed. (a) No person shall be produced by reason of his/her nationality from acting as an arbitrator. (a) It is not incompatible with an arbitration agreement for a party to request from a court. refer the parties to arbitration unless it finds that the arbitration agreement is null and void. A party may bring a petition under this Article before the court in accordance with the Rules of Court or the Special ADR Rules. the number of arbitrators shall be three (3). he/she shall be appointed.ADR (based on ATTY HIGUIT’S OUTLINE)-CHARMAGNE FERRER’S REVIEWER 92 (Application for Setting Aside an Exclusive Recourse Against Arbitral Award). The parties are free to determine the number of arbitrators Failing such determination. including those provided for in Article 4. Article 4.17 (Power of Tribunal to Order Interim Measures ). may be made with the court. (b) The parties are free to agree on a procedure of appointing the arbitrator or arbitrators. (c) A Court may not refuse to grant. by the appointing authority. under an appointment procedure agreed upon the parties. or (iii) a third party.9 Arbitration Agreement and Interim Measures by Court. (ii) in an arbitration with a sole arbitrator. or modification thereof as provided for. each party shall appoint one arbitrator. a request for interim measure of protection.10 Number of Arbitrators. while the issue is pending before the court.38 (Venue and Jurisdiction). (a) When a person is approached in connection with his/her possible appointment as an arbitrator. within fifteen (15) days after becoming aware of the constitution of the arbitral tribunal or after becoming aware of any circumstances referred to in paragraph (b) of Article 4. from the time of his/her appointment and throughout the arbitral proceedings shall.e. or participated in the appointment of. A party may bring a petition under this Article before the court in accordance with the Rules of Court or the Special ADR Rules. his/her mandate terminates if he/she withdraws from his/her office or if the parties agree on the termination. Unless the challenged arbitrator withdraws from his/her office or the other party agrees to the challenged arbitrator withdraws from his/her office or the party agrees to the challenge. Challenge Procedure. including the challenged arbitrator. (b) An arbitrator may be challenged only if circumstances exist that give rise to justifiable doubts as to his/her impartiality or independence. if the controversy remains concerning any of these grounds. an arbitrator withdraws from his/her office or a party agrees for termination of the mandate of an arbitrator. A party is not precluded from raising such plea by the fact that he/she has appointed. (b) If. The appointing authority shall have in appointing an arbitrator. A decision by the arbitral tribunal that the contract is null and void shall not entail ipso jure the invalidity of the arbitration clause. only for reasons of which he/she becomes aware after the appointment has been made. within thirty (30) . (b) Failing such agreement. without delay. (c) The arbitral tribunal may rule on a plea referred to in paragraph (b) of this Article either as a preliminary question or in an award on the merits. subject to the provisions of this Article. A party may challenge an arbitrator appointed by him/her. including any objections with respect to the existence or validity of the arbitration agreement or any condition precedent to the filing of the request for arbitration. Where the mandate of an arbitrator terminates under Articles 4. which decision shall be immediately executory and not subject for motion for reconsideration or appeal. a substitute arbitrator shall be appointed according to the rules that were applicable to the appointment of the arbitrator being replaced. Article 4. in either case. this does not imply acceptance of the validity of any ground referred to in this Article or in paragraph (b) of Article 4. within thirty (30) days after having received notice of the decision rejecting the challenge. (b) A plea that the arbitral tribunal does not have jurisdiction shall be raised not later than the submission of the statement of defense (I. (c) If a challenge under any procedure agreed upon by the parties or under the procedure of paragraph (b) of this Article is not successful. the arbitral tribunal shall decide on the challenge.15. disclose any such circumstance to the parties unless they have already been informed of them him/her. which forms part of a contract shall be treated as an agreement independent of the other terms of the contract. admit a later plea if it considers the delay justified. Article 4. Failure or Impossibility to Act. under this Article or paragraph (b) of Article 4. An arbitrator.12 (Grounds for Challenge. due regard to any qualifications required of the arbitrator by the agreement of the parties and to such considerations as are likely to secure the appointment of an independent and impartial arbitrator and. Appointment of Substitute Arbitrator. the challenging party may request the appointing authority. to decide on the challenge.ADR (based on ATTY HIGUIT’S OUTLINE)-CHARMAGNE FERRER’S REVIEWER 93 the agreement on the appointment procedure provides other means for securing the appointment.12 Grounds for Challenge.. The arbitral tribunal may. any party may request the appointing authority to decide on the termination of the mandate. the arbitral tribunal. (e) A decision on a matter entrusted by paragraphs (c) and (d) of this to the appointing authority shall be immediate executory and not be subject to a motion for reconsideration or appeal. Competence of Arbitral Tribunal to Rule on its Jurisdiction. Otherwise. For that purpose. or in whose appointment he/she has participated.13 (Challenge Procedure).12 (Grounds for Challenge).13 (Challenge Procedure) and 4. Article 4. Article 4.14 (Failure or Impossibility to Act) or because of his/her withdrawal from office for any other reason or because of the revocation of his/her mandate. While such a request is pending. in an Answer or Motion to Dismiss). in the case of a sole or third arbitrator . shall take into account as well the advisability of appointing an arbitrator of a nationality other than the Rules of Court of the Special ADR Rules. may continue the arbitral proceedings and make an award. an arbitration clause. (a) If an arbitrator becomes de jure or de facto unable to perform his/her functions or for other reasons fails to act without undue delay. a party who intends to challenge an arbitrator shall. which decision shall be immediately executory and not subject to motion for reconsideration or appeal. an arbitrator.14. If the arbitral tribunal rules as a preliminary question that it has jurisdiction. he/she impartiality or independence.) send a written statement of the reasons for the challenge to the arbitral tribunal. A plea 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 proceedings. RULE 4 – Jurisdiction of Arbitral Tribunal Article 4. (a) The arbitral tribunal may rule on its own jurisdiction.13.16. any party may request. or if he/she does not possess qualifications agreed to by the parties. (a) The parties are free to agree on a procedure for challenging an arbitrator. Such interim measures may include. shall decide on a different place of arbitration. the arbitral proceedings in respect of a particular dispute commence on the date on which a request for that dispute to be referred to arbitration is received by the respondent. Equal Treatment of Parties. The parties shall be treated with equality and each shall be given a full opportunity of presenting his/her case. This agreement. Article 4.17. (c) The power conferred upon the arbitral tribunal includes the power to determine the admissibility. RULE 5 – Conduct of Arbitral Proceedings Article 4. the parties are free to agree on the procedure to be followed by the arbitral tribunal in conducting the proceedings. other property or documents. has accepted the nomination and written communication of said nomination and acceptance has been received by the party making the request. Article 4. (a) Subject to the provisions of this Chapter.20. the arbitral tribunal may. materiality and weight of any evidence. Commencement of Arbitral Proceedings. Article 4. any hearing and any award. the Regional Trial Court to decide the matter. or for inspection of goods. but shall not be limited to. . (iv) Interim or provisional relief is requested by written application transmitted by reasonable means to the arbitral tribunal and the party against whom relief is sought. (iii) The order granting provisional relief may be conditioned upon the provision of security or any act or omission specified in order. order any party to take such interim measures of protection as the arbitral tribunal may consider necessary in respect of the subject to matter of the dispute following paragraph (c) of this Article. While such a request is pending.ADR (based on ATTY HIGUIT’S OUTLINE)-CHARMAGNE FERRER’S REVIEWER 94 days after having received notice of that ruling. resulting from noncompliance. at the request of the party. relevance.21. preliminary injunction directed against a party. including all expenses. Failing such agreement. having regard to the circumstances of the case. (vii) A party who does not comply with the order shall be liable for all damages. (c) The following rules on interim or provisional relief shall be observed: (i) Any party may request that the interim or provisional relief shall be observed: (ii) Such relief may be granted: (aa) To prevent irreparable loss or injury. supporting the request. Failing such agreement. including the convenience of the parties. Place of Arbitration. the language to be used shall be English. (b) Falling such agreement. the arbitral tribunal may. experts or the parties. the UNCITRAL Arbitration Rules adopted by the UNCITRAL on 28 April 1976 and the UN General Assemble on 15 December 1976 shall apply subject to the following clarification: All references to the "Secretary-General of the Permanent Court of Arbitration at the Hague" shall be deemed to refer to the appointing authority. preservation. Power of Arbitral Tribunal to Order Interim Measures. (a) The parties are free to agree on the place of arbitration. and during arbitral proceeding.18. for hearing witnesses. subject to this Chapter. Language. unless otherwise specified therein. inspection of property that is the subject of the dispute in arbitration. which decision shall be immediately executory and not subject to motion for reconsideration or appeal. or detention. meet at any place it considers appropriate for consultation among its members. the arbitral tribunal may. Unless otherwise agreed by the parties. (vi) Either party may apply with the court for assistance in implementing or enforcing an interim measure ordered by an arbitral tribunal. or modification thereof shall be made with the arbitral tribunal. Unless the arbitral tribunal considers it inappropriate. who has been nominated. a request for interim measures of protection. unless otherwise agreed by the parties. (b) Notwithstanding the rule stated in paragraph (a) of this provision. Determination of the Rules of Procedure. paid in obtaining the order's judicial enforcement. (a) The parties are free to agree on the language or languages to be used in the arbitral proceedings. The arbitral tribunal is deemed constituted when the sole arbitrator or the third arbitrator. shall apply to any written statement by a party. Article 4. the place of arbitration shall be in Metro Manila unless the arbitral tribunal. conduct the arbitration in such manner as it considers appropriate.19. (b) After constitution of the arbitral tribunal. (bb) To provide security for the performance of an obligation. and the evidence. appointment of receivers. the ground for the relief.22. the party against whom the relief is requested. Article 4. describing in appropriate details of the precise relief. (a) Unless otherwise agreed by the parties. (cc) To produce or preserve evidence (dd) To compel any other appropriate acts or omissions. (v) The order granting or denying an application for the interim relief shall be binding upon the parties. the arbitral tribunal may contribute the arbitral proceedings and make an award. and reasonable attorney's fees. 28. (a) the claimant fails to communicate his statement of claim in accordance with paragraph (a) Article 4. the claimant shall state the facts supporting his/her/its claim. (a) The arbitral tribunal shall decide the dispute in accordance with such rules of law as are chosen by the parties as applicable to the substance of the dispute. the arbitral tribunal shall apply the law determined by the conflict of laws rules. (b) The parties shall be given sufficient advance notice of any hearing and of any meeting of the arbitral tribunal for the purposes of inspection goods. Unless otherwise agreed by the parties. without. participate in a hearing where the parties have the opportunity to put questions to him and to present expert witnesses in order to testify on the points at issue. (b) The arbitral tribunal may order that any documentary evidence shall be accompanied by a translation into the language or languages agreed upon by the parties or determined by the arbitral tribunal in accordance with paragraph (a) of this Article. either party may amend or supplement his/her claim or defense during the course of the arbitral proceedings. or to provide access to.25 Default of a Party. unless otherwise expressed. Also. Court Assistance in Taking Evidence. (b) the respondent fails to communicate his/her/its statement of defense in accordance with paragraph (a) Article 4. The court may execute the request within its competence and according to its rules on taking evidence. the arbitral tribunal shall terminate the proceedings. unless the arbitral tribunal considers it inappropriate to allow such amendment having regard to the delay in making it. Article 4. any relevant documents. The parties may submit with their statements. (a) Within the period of time agreed by the parties or determined by the arbitral tribunal. after delivery of his/her written or oral report. or (b) may require a party to give the expert any relevant information or to produce. unless the parties have otherwise agreed as to the required elements of such statements.23 Statements of Claim and Defense. if so requested by a party. Expert Appointed by the Arbitral Tribunal. The arbitral tribunal shall have the power to subpoena witnesses and documents when the relevancy of the testimony and the materiality thereof has been demonstrated to it. and the respondent shall state his/her/its defense in respect of these particulars. Rules Applicable to the Substance of Dispute. The arbitral tribunal may also require the retirement of any witness during the testimony of any other witness. .26.23 (Statement of Claim and Defense). the points at issue and the relief or remedy sought. which it considers applicable. other property or documents. unless the parties have agreed that no hearings at an appropriate stage of the proceedings. (c) All statements. Any designation of the law or legal system of a given state shall be construed. as directly referring to the substantive law of that state and not its conflict of laws rules. the arbitral tribunal shall decide whether to hold oral hearings for the presentation of evidence or for oral argument. A party may bring a petition under this Section before the court in accordance with the Rules of Court or the Special ADR Rules. (c) The arbitral tribunal shall decide ex aequo et bono or as amiable compositeur only if the parties have expressly authorized it to do so. The arbitral tribunal or a party with the approval of the arbitral tribunal may request from a court of the Philippines assistance in taking evidence.27. the arbitral tribunal. showing sufficient cause. documents or other information supplied to the arbitral by one party shall be communicated to the other party. Article 4. if. Unless otherwise agreed by the parties. the arbitral tribunal may continue the proceedings and make the award on the evidence before it. (a) may appoint one or more experts to report to it on specific issues to be determined by the arbitral tribunal. the arbitral tribunal shall continue the proceedings without treating such failure in itself as an admission of the claimant’s allegations. goods or other property for his/her inspection. Unless otherwise agreed by the parties. an expert report or evidentiary document on which the arbitral tribunal may rely in making its decision shall be communicated to the parties.ADR (based on ATTY HIGUIT’S OUTLINE)-CHARMAGNE FERRER’S REVIEWER 95 decision or other communication by the arbitral tribunal. The arbitral tribunal shall have the power to require any person to attend a hearing as a witness. However. (a) Subject to any contrary agreement by the parties. (c) any party’s fails to appear at a hearing or to produce documentary evidence. Article 4. if a party so requests or if the arbitral tribunal considers it necessary. the expert shall. (b) Unless otherwise agreed by the parties. (b) Failing any designation by the parties. Article 4. Article 4. all documents they consider to be relevant or may add a reference to the documents or other evidence they will submit.23 (Statement of Claim and Defense).24 Hearing and Written Proceedings. or whether the proceedings shall be conducted on the basis of documents and other materials. Article 4. (ii) The parties agree the termination of the proceedings. In arbitral proceedings with more than one arbitrator. within thirty (30) days receipt of the award. and shall state that it is an award. An award on agreed terms shall be made in accordance with the provisions of Article 4. the arbitral tribunal shall terminate the proceedings and. unless otherwise agreed by other parties. unless another period of time has been agreed upon by the parties: (i) A party may. Termination of Proceedings. Settlement. In arbitral proceedings with more than one arbitrator. Pending determination of this issue. The award shall be deemed to have been made at that place. (a) Within thirty (30) days from receipt of the award.vacation. Additional Award) and paragraph (d) of Articles 4. questions of procedure may be decided by a presiding arbitrator . for special reasons. provided that the reason for any omitted signature is stated. If. the signatures of the majority of all members of the arbitral tribunal shall suffice.31 (Form and Contents of Award) shall apply to a correction or interpretation of the award or to an additional award.34 (Application for Setting Aside an Exclusive Recourse against Arbitral Award).33. if necessary. or any post-award proceedings. (a) The award shall be made in writing and shall be signed by the arbitrator or arbitrators. if so authorized by the parties or all members of the arbitral tribunal. reserve in the final award or order. It shall make the correction or give the interpretation within thirty (30) days from receipt of the request. (e) The arbitral tribunal may extend. (d) Notwithstanding the foregoing. any decision of the arbitral tribunal shall be made. unless the respondent objects thereto and the arbitral tribunal recognized a legitimate interest on his/her/its part in obtaining a final settlement of the dispute. the award shall not be deemed final for purposes of appeal . Decision-Making by Panel of Arbitrators. a copy signed by the arbitrators in accordance with paragraph (a) of this Article shall be delivered.20 (Place of Arbitration). it shall make the additional award within sixty (60) days Article 4. unless the parties have agreed that no reasons are to be given or the award is an award on agreed terms under paragraph (a) of Article 4. any clerical or typographical errors or any errors of similar nature.31. the arbitral tribunal shall decide in accordance with the terms of the contract and shall take into account the usages of the trade applicable to the transaction. Additional Award. (b) The award shall state the reasons upon which it is based. (ii) A party may. a hearing to quantity costs and determine which party shall bear the costs or the division thereof as may be determined to be equitable. the arbitral tribunal may. Form and Contents of Award. request the arbitral tribunal to correct in the award any errors in computation. the period of time within which it shall make a correction interpretation or an additional award under paragraphs (a) and (b) of this Article. (b) If the arbitral tribunal considers the request to be justified. correction. Such an award has the same status and effect as any other award on the merits of the case. (c) The mandate of the arbitral tribunal ends with termination of the arbitral proceedings subject to the provisions of Articles 4. a party may. with notice to the other party.31 (Form and Contents of Award). the parties settle the dispute. Article 4. Article 4. request the arbitral tribunal to give an interpretation of a specific point or part of the award. to each party. (iii) The arbitral tribunal finds that the continuation of the proceedings has for any other reason become unnecessary or impossible.ADR (based on ATTY HIGUIT’S OUTLINE)-CHARMAGNE FERRER’S REVIEWER 96 (d) In all cases. If the arbitral tribunal considers the request to be justified.32. it so agreed by the parties and with notice to the other party. with notice to the other party. record the settlement in the form of an arbitral award on agreed terms.33 (Correction and Interpretation of Award. (f) The provisions of Article 4. (a) The arbitral proceedings are terminated by the final award or by an order of the arbitral tribunal in accordance with paragraph (b) of this Article. request.30. . Correction and Interpretation of Award. (c) The arbitral tribunal may correct any error of the type referred to in paragraph (a) of this Article on its own initiative within thirty (30) day from the date of the award (d) After the award is made. by a majority of all its members. However.29. if requested by the parties and not objected to by the arbitral tribunal. during arbitral proceedings. (b) The arbitral tribunal shall issue an order for the termination of the arbitral proceedings when: (i) The claimant withdraws his/her/its claim. the arbitral tribunal to make an additional award as to claims presented in the arbitral proceedings but omitted from the award. (c) The award shall state its date and the place of arbitration as determined in accordance with paragraph (a) of this Article. Article 4. The interpretation shall form part of the award. Article 4. (d) Unless otherwise agreed by the parties. the party shall supply a duly certified translation thereof into such language. or (cc) the award deals with a dispute not contemplated by or not failing within the terms of the submission to arbitration. suspend the setting aside proceedings for a period of time determined by it in order to give the arbitral tribunal an opportunity resume the arbitral proceedings or take such other action as in the arbitral Article 4. If the award or agreement is not made in an official language of the Philippines. (a) A foreign arbitral award shall be recognized as binding and.34. recognize and enforce a nonconvention award as a convention award. Aplication for Setting Aside an Exclusive Recourse against Arbitral Award. (f) If the Regional Trial Court has recognized the arbitral award but an application for rejection and/or) suspension of enforcement of that award is subsequently made. shall be recognized and enforced as a foreign arbitral award and not as a judgment of a foreign court. or (dd) the composition of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement of the parties. unless such agreement was in conflict with a provision of ADR Act from which the parties cannot derogate. (c) An application for setting aside may not be made after three months have elapsed from the date on which the party making that application had received the award or. (e) A party may bring a petition under this Article before the court in accordance with the Special ADR Rules. where appropriate and so requested by a party. (i) Convention Award . vacate or suspend the decision to enforce that award and may also. if it considers the application to be proper. shall be enforced subject to the provisions of this Article and of Article 4. upon petition in writing to the regional trial Court. RULE 6 – Recognition and Enforcement of Awards (b) An arbitral award may be set aside by the Regional Trial Court only If: (i) the party making the application furnishes proof that: (aa) a party to the arbitration agreement was under some incapacity . tribunal's opinion will eliminate the grounds for setting aside. on grounds of comity and reciprocity. if the decisions on matters submitted to arbitration can be separated from those not so submitted. only the part of the award which contains decisions on matters not submitted to arbitration may be set aside. or (ii) the Court finds that: (aa) the subject-matter of the dispute is not capable of settlement by arbitration under the law of the Philippines. was not in accordance with ADR Act. (d) A foreign arbitral award when confirmed by a court of a foreign country. shall be enforced in the same manner as final and executory decisions of courts of law of the Philippines. . or (bb) the award is in conflict with the public policy of the Philippines. or contains. (b) The petition for recognition and enforcement of such arbitral awards shall be filled with the Regional trial Court In accordance with Special ADR Rules.The New York Convention shall govern the recognition and enforcement of arbitral awards covered by said Convention. (c) The party relying on an award or applying for its enforcement shall file with the Regional Trial Court the original or duly authenticated copy of the award and the original arbitration agreement or a duly authenticated copy thereof. falling such agreement. The court may. The petitioner shall establish that the country in which the foreign arbitration award was made is a party to the New York Convention (ii) Non-Convention Award – The recognition and enforcement of foreign arbitral awards not covered by the New York Convention shall be done in accordance with procedural rules to be promulgated by the Supreme Court. may. or (bb) the party making the application was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings or was otherwise unable to present his case. provided that. order the other party seeking rejection or suspension to provide appropriate security.ADR (based on ATTY HIGUIT’S OUTLINE)-CHARMAGNE FERRER’S REVIEWER 97 Article 4. on the application of the party claiming recognition or enforcement of that award. (a) Recourse to a court against an arbitral award may be made only by application for setting aside in accordance with second and third paragraphs of this Article. If a request had been made under Article 4. Recognition and Enforcement. failing any indication thereon. decisions on matters beyond the scope of the submission to arbitration.35. or. or the said agreement is not valid under the law to which the parties have subjected it or. the Regional Trial Court may.33 (Correction and Interpretation of Award. when asked to set aside an award. Additional Award) from the date on which that request has been disposed of by the Arbitral tribunal (d) The court. (e) A foreign arbitral award when confirmed by the Regional Trial Court.36 (Grounds for Refusing Recognition or Enforcement). under the law of the Philippines. or (b) the party against whom the award is invoked was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings or was otherwise in able to present his case. A CONVENTION AWARD. except appeal. Any other ground raised shall be disregarded by the Regional Trial Court. A decision of the Regional Trial Court recognizing. Article 4. or (e) the award has not become binding on the parties or has been set aside or suspended by a court of the country in which. A party to a foreign arbitration proceeding may oppose an application for recognition and enforcement of the arbitral award in accordance with the Special ADR Rules only on the grounds enumerated under paragraph (a) and (c) of Article 4. Article 4. the Regional Trial Court may. order the other party seeking suspension to provide appropriate security. Such stipulation carries with it a waiver of the right to appeal from an arbitral award but without prejudice to judicial review by way of certiorari under Rule 65 of the Rules of Court. under some incapacity. failing such agreement. The losing party who appeals from the judgment of the court recognizing and enforcing an arbitral award shall be required by the Court of Appeals to post a counterbond executed if favor of the prevailing party equal to the amount of the award in accordance with the Special ADR Rules. Recognition and enforcement of an arbitral award may also be refused if the Regional Trial Court where recognition and enforcement is sought finds that: (a) the subject-matter of the dispute is not capable of settlement by arbitration under the law of Philippines. NON-CONVENTION AWARD. Any stipulation by the parties that the arbitral tribunal’s award or decision shall be final. vacating or setting aside an arbitral award may be appealed to the Court of Appeals in accordance with the rules of procedure to be promulgated by the Supreme Court. Recognition or enforcement of an arbitral award.38. enforcing. the non-convention award cannot be recognized and/or enforced but may be deemed as presumptive evidence of a right as between the parties in accordance with Section 48 of the Rules of Court. was not in accordance with the law of the country where the arbitration too place. if it considers the petition to be proper. Proceedings for recognition and enforcement of an arbitration agreement or for vacation or setting aside of an arbitral award. failing any indication thereon. or (d) the composition of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement of the parties or. (b) If the Regional Trial Court has recognized the arbitral award but a petition for suspension of enforcement of that award is subsequently made. only if the party furnishes to the Regional Trial Court proof that: (a) The parties to the arbitration agreement are. made in a state. is valid. or (b) the recognition or enforcement of the award would be contrary to the public policy of the Philippines. may be refused. and therefore not appealable. .35 (Recognition and Enforcement). on the application of the party claiming recognition or enforcement of that award. under the law applicable to them. shall be deemed as special proceedings and shall be filed with the Regional Trial Court where: (a) the arbitration proceedings are conducted. if the decisions on matters submitted to arbitration can be separated from those not so submitted. and any application with a court for arbitration assistance and supervision.ADR (based on ATTY HIGUIT’S OUTLINE)-CHARMAGNE FERRER’S REVIEWER 98 Article 4. if it considers the counter-petition to be proper but the objections thereto may be rectified or cured. provided that. or the said agreement is not valid under the law to which the parties have subjected it or. (a) A foreign arbitral award rendered in a state which is not a party to the New York Convention will be recognized upon proof of the existence of comity and reciprocity and may be treated as a convention award. or it contains decisions on matters beyond the scope of the submission to arbitration. remit the award to the arbitral tribunal for appropriate action and in the meantime suspend the recognition and enforcement proceedings and may also on the application of the petitioner order the counterpetitioner to provide appropriate security. that award was made. or under the law of which. the Regional Trial Court may. Appeal from Court Decision on Arbitral Awards. B. under the law of the country where the award was made. at the request of the party against whom it is provoked. If not so treated and if no comity or reciprocity exists. suspend the proceedings to enforce the award. or (c) the award deals with dispute not contemplated by or not failing within the terms of the submission to arbitration. (c) If the petition for recognition or enforcement of the arbitral award is filed by a party and a counter-petition for the rejection of the arbitral award is filed by the other party. that part of the award which contains decisions on matters submitted to arbitration may be recognized and enforced.36.37. which is a party to the New York Convention. and may also. Grounds for Refusing Recognition or Enforcement. Venue and Jurisdiction. Provided. the court may issue an order extending the time within which notice of a motion to recognize or vacate an award must be served. a party may be represented by any person of his/her choice: Provided. the proceedings may be begun or continued upon the application of. Consolidation of Proceedings and Concurrent Hearings.42. Costs. evidence and the arbitral award. at such party’s last known address. however. The arbitration proceedings. A petition for recognition and enforcement of awards brought before the court shall be heard and dealt with summarily in accordance with the Special ADR Rules. Upon recognizing an award. (v) The costs for legal representation and assistance of the successful party if such costs were claimed during the arbitral proceedings. In a special proceeding for recognition and enforcement of an arbitral award.39. (c) where any of the parties to the dispute resides or has its place of business. developments. The term "costs" include only: (i) The fees of the arbitral tribunal to be stated separately as to each arbitrator and to be fixed by the tribunal itself in accordance with the paragraph (b) of this Article. the court shall send notice to the parties at their address of record in the arbitration. or the act to be enjoined is located. including the records. the arbitral tribunal in fixing its fees shall take that schedule of fees into account to the extent . shall be used. his/her executor or administrator. and the proceedings thereupon are the same as where a party dies after a verdict. Article 4. the time spent by the arbitrators and any other relevant circumstances of the case. – The parties and the arbitral tribunal may agree – (a) that the arbitration proceedings shall be consolidated with other arbitration proceedings. Multi-Party Arbitration. subject to such modifications consistent with this Chapter as the arbitral tribunal shall deem appropriate to address possible complexities of a multi-party arbitration.41. The notice shall be sent at least fifteen (15) days before the date set for the initial hearing of the application.44. or Article 4. In international commercial arbitration conducted in the Philippines. (d) in the National Capital Judicial Region at the option of the applicant. where a party has died since it was filed or delivered. original party. (a) The arbitral tribunal shall fix the costs of arbitration in its award. the foregoing rules. and only to the extent that the arbitral tribunal determines that the amount of such costs is reasonable.40. Confidentially of Arbitration Proceedings. Legal Representation in International Commercial Arbitration. (ii) The travel and other expenses incurred by the arbitrators. (b) The fees of the arbitral tribunal shall be reasonable in amount. (iv) The travel and other expenses of witnesses to the extent such expenses are approved by the arbitral tribunal.46. Notice of Proceedings to Parties. or (b) for the limited purpose of disclosing to the court relevant documents in cases where resort to the court is allowed herein. Article 4. Summary nature of proceedings before the court. or notice to. (iii) The costs of expert advice and of other assistance required by the arbitral tribunal. or if any party cannot be served notice at such address. unless admitted to the practice of law in the Philippines. the complexity of the subject matter. or (b) that concurrent hearings shall be held. Death of a Party. to the extent possible. the court must enter judgement in the name of the Article 4. research and other information where it is shown that the applicant shall be materially prejudiced by an authorized disclosure thereof. Article 4. or temporary administrator of his/her estate. Article 4. that the court in which the action or the appeal is pending may issue a protective order to prevent or prohibit disclosure of documents or information containing secret processes. Article 4.ADR (based on ATTY HIGUIT’S OUTLINE)-CHARMAGNE FERRER’S REVIEWER 99 (b) where the asset to be attached or levied upon. If an appointing authority has been agreed upon by the parties and if such authority has issued a schedule of fees for arbitrators in international cases which it administers.45.43. Where a party dies after making a submission or a contract to arbitrate as prescribed in these Rules. Unless the parties agree to confer such power on the arbitral tribunal. In any such case. that such representative. taking into account the amount in dispute. (v1) Any fees and expenses of the appointing authority. the tribunal has no power to order consolidation of arbitration proceedings or concurrent hearings. shall not be authorized to appear as counsel in any Philippine court or any other quasi-judicial body whether or not such appearance is in relation to the arbitration in which he/she appears. Article 4. on such terms as may be agreed. shall be considered confidential and shall not be poolside except: (a) with the consent of the parties. When a single arbitration involves more than two parties. as amended by the ADR Act. it shall continue to be governed by E. or a person judicially declared to be incompetent.O. taking into account the circumstances of the case.1. 13. precedent or subsequent to any dispute between the parties. on its establishment. (ii) and (iii) of paragraph (a) of this Article.6 shall continue to be governed by Republic Act No. in principle. by an arbitrator who is a private individual appointed by the parties to hear and resolve their dispute by rendering an award. it shall fix the costs of arbitration referred to in paragraphs (b). (b) This Chapter shall apply to domestic arbitration whether the dispute is commercial. the arbitral tribunal shall render an accounting to the parties of the deposits received and return any unexpended balance to the parties. If the appointing authority consents to provide such a statement. If such appointing authority has not issued a schedule of fees for arbitrators in international cases. If the required deposits are not paid in full within thirty (30) days after receipt of the request. 14.1985 and the rules promulgated by the Construction Industry Arbitration Commission. Such submission or contract shall be valid. although a construction dispute may be commercial. However. 10. Provided that. the arbitral tribunal shall fix its fees only after consultation with the appointing authority which may make any comment it deems appropriate to the arbitral tribunal concerning the fees. otherwise known as "The Arbitration Law". or the parties to any contract may in such contract agree to settle by arbitration a controversy thereafter arising between them. With respect to the costs of legal representation and assistance referred to in paragraph (c) of paragraph (a) (iii) of this Article. the arbitral tribunal. Scope of Application. save upon such grounds as exist at law for the revocation of any contract. No. (c) In cases referred to in the second and third subparagraphs of paragraph (b) of this Article. (d) Except as provided in the next sub-paragraph of this paragraph. (c) and (d) of this Article in the context of that order or award. shall be free to determine which party shall bear such costs or may apportion such costs between the parties if it determines that appointment is reasonable.ADR (based on ATTY HIGUIT’S OUTLINE)-CHARMAGNE FERRER’S REVIEWER 100 that it considers appropriate in the circumstances of the case. (a) Domestic arbitration. the arbitral tribunal may apportion each of such costs between the parties if it determines that apportionment is reasonable. which is not international as defined in paragraph C8 of Article 1. In the absence of a specific applicable provision. unless the appropriate court having jurisdiction approved a petition for permission to submit such controversy to . CHAPTER 5 DOMESTIC ARBITRATION RULE 1 – General Provisions Article 5. When the arbitral tribunal issues an order for the termination of the arbitral proceedings or makes an award on agreed terms. s. at any time request the appointing authority to furnish a statement setting forth the basis for establishing fees which is customarily followed in international cases in which the authority appoints arbitrators. the arbitral tribunal shall fix the amounts of any deposits or supplementary deposits only after consultation with the appointing authority which may make any comments to the arbitral tribunal which it deems appropriate concerning the amount of such deposits and supplementary deposits. when a party so requests and the appointing authority consents to perform the function. may request each party to deposit an equal amount as an advance for the costs referred to in paragraphs (i). the arbitral tribunal may request supplementary deposits from the parties. Articles 8. any party may. If an appointing authority has been agreed upon by the parties and when a party so requests and the appointing authority consents to perform the function. as defined in Section 21 of the ADR Act. During the course of the arbitral proceedings. enforceable and irrevocable. or non-commercial. (c) Two or more persons or parties may submit to arbitration by one or more arbitrators any controversy existing between them at the time of the submission and which may be the subject of an action. shall take such information into account to the extent that it considers appropriate in the circumstances of the case. the arbitral tribunal shall so inform the parties in order that the required payment may be made. the arbitral tribunal may order the suspension or termination of the arbitral proceedings. the costs of arbitration shall. After the award has been made. A controversy cannot be arbitrated where one of the parties to the controversy is an infant. 11. 12. 1008. appraisals or other controversies which may be collateral. incidental. (e) The arbitral tribunal. If such payment is not made. Such submission or contract may include questions arising out of valuations. be borne by the unsuccessful party. all other rules applicable to international commercial arbitration may be applied in a suppletory manner to domestic arbitration. in fixing its fees. 876. 18 and 19 and 29 to 32 of the Model Law and Sections 22 to 31 of the ADR Act are specifically applicable to domestic arbitration. the arbitral tribunal. taking into account the circumstances of the case. (d) Except as the parties may agree or the arbitrator may direct otherwise. Article 5. an interim measure of protection and for a court to grant such measure.11 (Grounds for Challenge). a written communication may be delivered by electronic mail or facsimile transmission or by such other means that will provide a record of the sending and receipt thereof at the recipient’s mailbox (electronic inbox). Such communication shall be deemed to have been received on the date it is delivered at the addressee’s address of record. An arbitration agreement shall be in writing. (c) Where the action is commenced by or against multiple parties.5. (a) It is not incompatible with an arbitration agreement for a party to request from a court. while the issue is pending before the court. the applicant may renew the application with the court.4. Article 5. both parties may make a similar request with the court. Article 5. paragraph (a) of Article 5. a written communication from one party to the other or to the arbitrator or to an arbitration institution or from the arbitrator or arbitration institution to the parties shall be delivered to the addressee personally. Thereafter. An agreement is in writing if it is contained in a document signed by the parties or in an exchange of letters. Article 5. unless the latter shall fail or refuse to act within thirty (30) days from receipt of the request in which case. Article 5. Arbitration Agreement and Substantive Claim Before Court. written communications for that party shall be delivered to the address of record of such counsel or representative. the arbitrator may order a mode of delivery and a rule for receipt of written communications different from that provided in paragraph (a) of this Article. Arbitration Agreement and Interim Measures by Court. (c) If a party is represented by counsel or a representative. shall be performed by the appointing authority. Form of Arbitration Agreement. The reference in a contract to a document containing an arbitration clause constitutes an arbitration agreement provided that the contract is in writing and the reference is such as to make that clause part of the contract. or in an exchange of statements of claim and defense in which the existence of an agreement is alleged by one party and not denied by the other.8. it shall be done within a period of thirty (30) days from the date when such act could have been done with legal effect. and paragraph (a) of Article 5. Delivery and Receipt of Written Communications. (a) A party to an action may request the court before which it is pending to stay the action and to refer the dispute to arbitration in accordance with their arbitration agreement not later than the pre-trial conference. (b) If an act is required or allowed to be done under this Chapter. and an award may be made. inoperative or incapable of being performed. the court shall refer to arbitration those parties who are bound by the arbitration agreement although the civil action may continue as to those who are not bound by such arbitration agreement. and. But where a person capable of entering into a submission or contract has knowingly entered into the same with a person incapable of so doing. The communication. unless the applicable rule or the agreement of the parties provides a different period for the act to be done. Court or Other Authority for Certain Functions of Arbitration Assistance and Supervision. The parties shall be referred to arbitration unless the court finds that the arbitration agreement is null and void. the objection on the ground of incapacity can be taken only in behalf of the person so incapacitated. no court shall intervene except in accordance with the Special ADR Rules. telex. telegrams or other means of telecommunication which provide a record of the agreement. arbitral proceedings may nevertheless be commenced or continued. place of business. a request for an interim . Extent of Court Intervention.6.3. within such period of time. In matters governed by this Chapter.7. one or more of whom are parties to an arbitration agreement.13 (Failure or Impossibility to Act). shall be delivered to each party to the arbitration and to each arbitrator. Waiver of Right to Object. in institutional arbitration. The functions referred to in paragraphs (c) and (d) of Article 5. Such communication shall be deemed to have been received on the same date of its transmittal and receipt in the mailbox (electronic inbox).ADR (based on ATTY HIGUIT’S OUTLINE)-CHARMAGNE FERRER’S REVIEWER 101 arbitration made by the general guardian or guardian ad litem of the infant or of the incompetent. (a) Except as otherwise agreed by the parties. (b) Where an action referred to in paragraph (a) of this Article has been brought. Article 5. as appropriate. residence or last known address.2. before the constitution of the arbitral tribunal or during arbitral proceedings. (a) A party shall be deemed to have waived his right to object to noncompliance with any non-mandatory provision of these Rules (from which the parties may derogate) or any requirement under the arbitration agreement when: (i) he/she/it knows of such non-compliance.10 (Appointment of Arbitrators). (b) After the constitution of the arbitral tribunal and during arbitral proceedings. one copy to the administering institution. by registered mail or by courier service. RULE 2 – Arbitration Agreement Article 5. (b) During the arbitration proceedings. and (ii) proceeds with the arbitration without stating his/her/its objections to such non-compliance without undue delay or if a time-limit is provided therefor. If. (iii) The order granting provisional relief may be conditioned upon the provision of security or any act or omission specified in the order. upon request of a party. (c) The following rules on interim or provisional relief shall be observed: Article 5.10. order any party to take such interim measures of protection as the arbitral tribunal may consider necessary in respect of the subject matter of the dispute following the Rules in this Article. The parties are free to determine the number of arbitrators. any party may request the appointing authority to appoint an arbitrator. may be made with the arbitral tribunal or to the extent that the arbitral tribunal has no power to act or is unable to act effectively. the number of arbitrators shall be three (3). in full enjoyment of his/her civil rights and knows how to read and write. preservation. Failing such determination. (i) Any party may request that interim or provisional relief be granted against the adverse party. (i) a party fails to act or appoint an arbitrator as required under such procedure. or (ii) the parties. No person shall serve as an arbitrator in any proceeding if he/she has or has had financial. Appointment of Arbitrators. (a) Any person appointed to serve as an arbitrator must be of legal age. (v) The order either grating or denying an application for interim relief shall be binding upon the parties. or (dd) To compel any other appropriate act or omissions. he/she shall be appointed. (c) Failing such agreement. Number of Arbitrators. or (iii) a third party. the ground for the relief. (i) in an arbitration with three (3) arbitrators. or two (2) arbitrators. the request may be made with the court. the party against whom the relief is requested. inspection of property that is the subject of the dispute in arbitration. the arbitral tribunal may. or has any personal bias. fails to appoint an arbitrator or to perform any function entrusted to it under such procedure. or if the two arbitrators fail to agree on the third arbitrator within thirty (30) days of their appointment.ADR (based on ATTY HIGUIT’S OUTLINE)-CHARMAGNE FERRER’S REVIEWER 102 measure of protection. if the parties are unable to agree on the arbitrator. describing in appropriate detail of the precise relief. or (iv) The multiple claimants or the multiple respondents is/are unable to appoint its/their respective arbitrator. (vi) Either party may apply with the court for assistance in implementing or enforcing an interim measure ordered by an arbitral tribunal. are unable to appoint an arbitrator or reach an agreement expected of them under such procedure. resulting from noncompliance. (cc) To produce or preserve evidence. and reasonable attorney’s fees. Article 5. (ii) Such relief may be granted: (aa) To prevent irreparable loss or injury. (iv) Interim or provisional relief is requested by written application transmitted by reasonable means to the arbitral tribunal and the party against whom relief is sought. (b) The parties are free to agree on a procedure of appointing the arbitrator or arbitrators. Composition of Arbitral Tribunal No party shall select as an arbitrator any person to act as his/her champion or to advocate his/her cause. the appointment shall be made. or modification thereof. RULE 3. (d) Unless otherwise agreed by the parties. which might prejudice the right of any party to a fair and impartial award.9. and the evidence supporting the request. Either party may apply with the court for assistance in implementing or enforcing an interim measure ordered by an arbitral tribunal. (ii) in an arbitration with a sole arbitrator. by the appointing authority. . including an institution. No person appointed to serve as an arbitrator shall be related by blood or marriage within the sixth degree to either party to the controversy. under an appointment procedure agreed upon by the parties. by the appointing authority. (vii) A party who does not comply with the order shall be liable for all damages. (d) Where. such method shall be followed. (bb) To provide security for the performance of an obligation. a provision is made for a method of appointing an arbitrator or arbitrators. and the two (2) arbitrators thus appointed shall appoint the third arbitrator. Such interim measures may include but shall not be limited to preliminary injunction directed against a party. paid in obtaining the order’s judicial enforcement. each party shall appoint one (1) arbitrator. upon request of a party. fiduciary or other interest in the controversy or cause to be decided or in the result of the proceeding. in the contract for arbitration or in the submission. at the request of a party. including all expenses. if a party fails to appoint the arbitrator within thirty (30) days of receipt of a request to do so from the other party. appointment of receivers or detention. (i) 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 which later case. If all the claimants or all the respondents cannot decide among themselves on an arbitrator. (v) an executive summary of the dispute which should indicate the nature of the dispute and the parties thereto. not exceeding thirty (30) days from receipt of the request. (n) A party upon whom a copy of the Request for Appointment is communicated may. the appointing authority shall have regard to such considerations as are likely to secure the appointment of an independent and impartial arbitrator. (i) the demand for arbitration. If the objection of a party is based on the ground that the party did not fail to choose and appoint an arbitrator for the arbitral tribunal. and shall form part of. having regard to the circumstances. the request shall include such further information or particulars as the administering institution shall require. as applicable. or as fixed in accordance either with the internal guidelines or the Schedule of Fees approved by the administering institution or by the appointing authority. the appointing authority. The third arbitrator shall be appointed as provided above. file with the appointing authority his/her/its objection/s to the Request or ask for an extension of time. (g) 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. (j) Any clause giving one of the agreement. (vii) the person/s appearing as counsel for the party/ies. or the meeting does not take place because of the absence of either or both parties despite due notice. The appointing authority shall be deemed to have been given by the parties discretionary authority in making the appointment but in doing so. (k) The appointing authority may adopt Guidelines for the making of a Request for Appointment. to appoint an arbitrator or act in . In institutional arbitration.5 (Court or Other Authority for Certain Functions of arbitration Assistance and Supervision) shall apply. within seven (7) days of its receipt. if any. time and place set by it. (e) If the default appointment of an arbitrator is objected to by a party on whose behalf the default appointment is to be made. (l) Except as otherwise provided in the Guidelines of the appointing authority. the appointing authority shall have due regard to any qualification or disqualification of an arbitrator/s under paragraph (a) of Article 5.ADR (based on ATTY HIGUIT’S OUTLINE)-CHARMAGNE FERRER’S REVIEWER 103 In making the appointment. If a sole arbitrator is not appointed in such meeting. Proof of such delivery shall be included in. there shall be attached to the objection the appointment of an arbitrator together with the latter’s acceptance thereof and curriculum vitae. by the arbitrators appointed. (vi) principal office and officers of a corporate party. (m) A copy of the Request for Appointment shall be delivered to the adverse party. the procedure described under Article 5. the appointing authority shall summon the parties and their respective counsel to appear before said authority on the date. the Request for Appointment filed with the appointing authority. and the defaulting party requests the appointing authority for additional time to appoint his/her arbitrator. may give the requesting party not more than thirty (30) days to make the appointment. the appointing authority shall appoint the sole arbitrator. shall be construed as permitting the appointment of one (1) arbitrator by all claimants and one (1) arbitrator by all respondents. Otherwise. and (viii) information about arbitrator’s fees where there is an agreement between the parties with respect thereto. (iv) any qualification or disqualification of the arbitrator as provided in the arbitration agreement. (ii) the name/s and curricula vitae of the appointed arbitrator/s. the appointing authority shall give preference to a qualified person who has a place of residence or business in the same general locality as the agreed venue of the arbitration and who is likely to accept the arbitrator’s fees agreed upon by the parties. a Request for Appointment shall include. in default thereof. the following: (f) In making a default appointment. the appointing authority shall appoint the arbitrator for that party. (h) A decision on a matter entrusted by this Article to the appointing authority shall be immediately executory and not subject to appeal or motion for reconsideration. (iii) the acceptance of his/her/its appointment of the appointed arbitrator/s. the appointment shall be made for them by the appointing authority. In order to achieve speedy and impartial justice and to moderate the cost of arbitration. for the purpose of selecting and appointing a sole arbitrator. if otherwise valid.10 (Appointment of Arbitrators) as well as any qualifications required of the arbitrator/s by the agreement of the parties and to such considerations as are likely to secure the appointment of an independent and impartial arbitrator. in choosing an arbitrator. the challenging party may request the appointing authority. (e) A party may challenge an arbitrator appointed by him/her/it. may continue the arbitral proceedings and make an award. Unless the challenged arbitrator withdraws from his/her office or the other party agrees to the challenge. effective and fair resolution of the dispute. or which he/she believes might disqualify him/her as an impartial arbitrator. extent and age of such financial or professional dealings. or in default thereof. send a written statement of the reasons for the challenge to the arbitral tribunal. the appointing authority shall make the default appointment. (ii) he/she does not possess qualifications as provided for in this Chapter or those agreed to by the parties. in good faith. promptly respond to questions from a party regarding the nature. the latter’s curriculum vitae. he/she shall immediately disclose those circumstances to the parties. shall include. Challenge Procedure. the parties may agree in writing: (i) to waive the presumptive disqualifying circumstances. Any such vacancy shall be filed in the same manner the original appointment was made. these Rules. and the Code of Ethics for Arbitrators in Domestic Arbitration. who is appointed as an arbitrator notwithstanding the disclosure made in accordance with this Article. Grounds for Challenge. and (iii) he agrees to devote as much time and attention to the arbitration as the circumstances may require in order to achieve the objective of a speedy. to decide on the challenge. a party who intends to challenge an arbitrator shall. which decision shall be immediately executory and not subject to appeal or motion for reconsideration. or in default thereof. and shall.ADR (based on ATTY HIGUIT’S OUTLINE)-CHARMAGNE FERRER’S REVIEWER 104 accordance with the procedure agreed upon or provided by these Rules. independence. In the event that the said party fails to appoint an arbitrator within said period. in his/her acceptance letter. it shall be deemed as a challenge. (d) If a request for inhibition is made. A person. if any. and the latter’s acceptance of the appointment. shall reduce the disclosure to writing and provide a copy of such written disclosure to all parties in the arbitration. within fifteen (15) days after becoming aware of the constitution of the arbitral tribunal or after becoming aware of any circumstance referred to in paragraph (b) of Article 5. (ii) he/she accepts as compensation the arbitrator’s fees agreed upon by the parties or as determined in accordance with the rules agreed upon by the parties. subject to the provisions of paragraph (c) of this Article.12. Article 5. A written disclosure is not required where it is made during the arbitration and it appears in a written record of the arbitration proceedings. he/she shall disclose any circumstance likely to give rise to justifiable doubts as to his/her impartiality. An arbitrator. or (ii) to declare the office of such arbitrator vacant. Within the aforementioned periods. (iv) he refuses to respond to questions by a party regarding the nature and extent of his professional dealings with a party or its counsel. the arbitrator shall immediately disclose such information to the parties. a person appointed to serve as an arbitrator shall discover any circumstances likely to create a presumption of bias. after appointment but before or during hearing. (d) After initial disclosure is made and in the course of the arbitration proceedings. the arbitral tribunal. (e) An arbitrator who has or has had financial or professional dealings with a party to the arbitration or to the counsel of either party shall disclose in writing such fact to the parties. the arbitration rules agreed upon by the parties. While such a request is pending. these Rules. (a) When a person is approached in connection with his/her possible appointment as an arbitrator. Article 5. when the arbitrator discovers circumstances that are likely to create a presumption of bias. a statement that: (i) he/she agrees to comply with the applicable law. or in whose appointment he/she/it has . the arbitral tribunal shall decide on the challenge. (iii) he/she is disqualified to act as arbitration under these Rules.11 (Grounds for Challenge). (a) The parties are free to agree on a procedure for challenging an arbitrator. including the challenged arbitrator. within thirty (30) days after having received notice of the decision rejecting the challenge.11. qualifications and disqualifications. (c) If a challenge under any procedure agreed upon by the parties or under the procedure of paragraph (b) of this Article in not successful. Thereafter. from the time of his/her appointment and throughout the arbitral proceedings. (o) An arbitrator. in accepting an appointment. shall without delay. disclose any such circumstances to the parties unless they have already been informed of them by him/her. the party seeking the extension shall provide the appointing authority and the adverse party with a copy of the appointment of his/her arbitrator. (c) If. (b) Failing such agreement. (b) An arbitrator may be challenged only if: (i) circumstances exist that give rise to justifiable doubts as to his/her impartiality or independence. an arbitrator withdraws from his/her office or a party agrees to the termination of the mandate of an arbitrator. or in proper cases. if the challenge incident is raised before the court. Appointment of Substitute Arbitrator. The request made under this Article shall include the challenge. this does not imply acceptance Of the validity of any ground referred to in this Article 5. the arbitral tribunal or appointing authority failed or refused to act within the period provided in paragraphs (j) and (k) of this Article. Otherwise. A challenge shall be made within fifteen (15) days from knowledge by a party of the existence of a ground for a challenge or within fifteen (15) days from the rejection by an arbitrator of a party’s request for his/her inhibition. (j) In default of an agreement of the parties to agree on the challenge thereby replacing the arbitrator. Failure or Impossibility to Act.13. (p) The appointment of a substitute arbitrator shall be made pursuant to the procedure applicable to the appointment of the arbitrator being replaced.ADR (based on ATTY HIGUIT’S OUTLINE)-CHARMAGNE FERRER’S REVIEWER 105 participated. If the court agrees that the challenged arbitrator shall be replaced. the arbitration proceeding shall be suspended until after the court shall have decided the incident. Article 5. The appointing authority shall decide on the challenge within fifteen (15) days from receipt of the request.12 (Challenge Procedure) or 5. the court decides the challenge and declares the office of the challenged arbitrator vacant. under this Article or Article 5. the court. the requesting party may renew the request with the court. (k) If the challenge procedure as agreed upon by the parties or as provided in this Article is not successful. only for reasons of which he/she/it becomes aware after the appointment has been made. within the same fifteen (15) day period. the parties shall immediately replace the arbitrator concerned. the arbitral tribunal. to the challenged arbitrator. to the parties. from either party. the parties may. his/her rejection of the challenge and state the facts and arguments relied upon for such rejection. if any. The arbitration shall be continued immediately after the court has delivered an order on the challenging incident.12. (g) Within fifteen (15) days of receipt of the challenge. However. or from the arbitral tribunal. the challenged arbitrator shall decide whether he/she shall accept the challenge or reject it. if any. and the challenged arbitrator shall continue to participate therein as an arbitrator. (h) An arbitrator who does not accept the challenge shall be given an opportunity to be heard. or (ii) the parties agree in writing to declare the office of arbitrator vacant. to accept or reject a challenge is not subject to appeal or motion for reconsideration. any party may request the appointing authority to decide on the termination of the mandate. (f) The challenge shall be in writing and it shall state specific facts that provide the basis for the ground relied upon for the challenge. to the remaining members of the arbitral tribunal and to the institution administering the arbitration. within the same period of time. the appointing authority. or a party or the arbitral tribunal shall decline to act. (o) Until a decision is made to replace the arbitrator under this Article. (m) A challenged arbitrator shall be replaced if: (i) he/she withdraws as arbitrator. agree to the challenge. as appropriate.13 (Failure or Impossibility) or because of his withdrawal from office for any other reason or because of the revocation of his mandate by agreement of the parties or in any other case of termination of his/her mandate. Where the mandate of an arbitrator terminates under Articles 5. If he/she rejects it. (i) Notwithstanding the rejection of the challenge by the arbitrator. (n) The decision of the parties. with notice to the parties. his/her mandate terminates if he/she withdraws from his/her office or if the parties agree on the termination. the arbitration proceeding shall continue notwithstanding the challenge. Article 5. he/she shall communicate. or (iii) the arbitral tribunal decides the challenge and declares the office of the challenged arbitrator vacant. If he/she accepts the challenge. he/she shall voluntarily withdraw as arbitrator. (b) If.12 (Challenge Procedure). if a controversy remains concerning any of these grounds. (a) If an arbitrator becomes de jure or de facto unable to perform his/her functions or for other reasons fails to act without undue delay.14. the arbitral tribunal shall decide on the challenge within thirty (30) days from receipt of the challenge. the reply or explanation of the challenged arbitrator and relevant communication. a substitute . because the parties. If the appointing authority shall fail to act on the challenge within thirty (30) days from the date of its receipt or within such further time as it may fix. which decision shall be immediately executory and not subject to appeal or motion for reconsideration. (n) Every communication required or agreement made under this Article in respect of a challenge shall be delivered. or (v) in default of the appointing authority. the challenging party may request the appointing authority in writing to decide on the challenge within thirty (30) days after having received notice of the decision rejecting the challenge. or (iv) the appointing authority decides the challenge and declares the office of the challenged arbitrator vacant. the same shall not preclude the appointment of the arbitrator/s as such issue is for the arbitral tribunal to decide. order any party to take such interim measures of protection as the arbitral tribunal may consider necessary in respect of the subject matter of the dispute following the rules in this Article. (vii) A party who does not comply with the order shall be liable for all damages. inspection of property that is the subject of the dispute in arbitration. the party against whom the relief is requested. (bb) To provide security for the performance of an obligation. (ii) Such relief may be granted: (aa) To prevent irreparable loss or injury. The arbitral tribunal. the ground for the relief and the evidence supporting the request. in the first instance. or (iii) the dispute is under the original and exclusive jurisdiction of a court or quasi-judicial body.ADR (based on ATTY HIGUIT’S OUTLINE)-CHARMAGNE FERRER’S REVIEWER 106 arbitrator shall be appointed according to the rules applicable to the arbitrator being replaced. the arbitral tribunal shall. in light of the facts and arguments raised to question its jurisdiction. or (dd) To compel any other appropriate act or omissions. (a) Unless otherwise agreed by the parties. or enforceability of the arbitration agreement. RULE 5 – Conduct of Arbitral Proceedings . including the fact that the adverse party is not privy to said agreement. (iii) The order granting provisional relief may be conditioned upon the provision of security or any act or omission specified in the order. void. resolve the objection when made on any of the following grounds: (i) the arbitration agreement is in existent. (iv) Interim or provisional relief is requested by written application transmitted by reasonable means to the arbitral tribunal and the party against whom relief is sought. (v) The order either granting or denying an application for interim relief shall be binding upon the parties. and reasonable attorney’s fee paid in obtaining the order’s judicial enforcement. including all expenses. (c) The following rules on interim or provisional relief shall be observed: (i) Any party may request that the provisional or interim relief be granted against the adverse party. validity. and during arbitral proceedings. RULE 4 – Jurisdiction of Arbitral Tribunal Article 5. (a) When a demand for arbitration made by a party to a dispute is objected to by the adverse party. Such interim measures may include. (c) The respondent in the arbitration may invoke any such grounds to question before the court the existence. (cc) To produce or preserve evidence. or (ii) the dispute is not arbitrable or is outside the scope of the arbitration agreement. or the jurisdiction of the arbitrator and invoke the pendency of such action as ground for suspension of the arbitration proceeding. (b) After the constitution of the arbitral tribunal. to be submitted to arbitration. describing in appropriate detail the precise relief. or modification thereof. appointment of receivers or detention preservation. a party files an action before the court which embodies or includes as a cause of action the dispute that is to be submitted to arbitration the filling of such action shall not prevent the commencement of the arbitration or the continuation of the arbitration until the award is issued. who has been nominated.15 Competence of Arbitral Tribunal to Rule on its Jurisdiction. The arbitral tribunal is deemed constituted when the sole arbitrator or the third arbitrator. has accepted the nomination and written communication of said nomination and acceptance has been received by the party making the request. (d) If a dispute is. a request for interim measures of protection. (b) If a party raises any of the grounds for objection. resulting from noncompliance. but before arbitration is commenced or while it is pending. The participation of a party in the selection and appointment of an arbitrator and the filling of appropriate pleadings before the arbitral tribunal to question its jurisdiction shall not be construed as a submission to the jurisdiction of the arbitral tribunal or of a waiver of his/her/its right to assert such grounds to challenge the jurisdiction of the arbitral tribunal or the validity of the resulting award. the arbitral tribunal may. or the propriety of the arbitration. (vi) Either party may apply with the court for assistance in implementing or enforcing an interim measure ordered by an arbitral tribunal. may decide either to suspend the arbitration until the court has made a decision on the issue or continue with arbitration. but shall not be limited to preliminary injunction directed against a party. having regard to the circumstances of the case. at the request of a party. shall be made with the arbitral tribunal.16 Power of Arbitral Tribunal to Order Interim Measures. Article 5. under an arbitration agreement. unenforceable or not binding upon a person for any reason. and the need for the early and expeditious settlement of the dispute. 20 Commencement of Arbitral Proceedings (a) Where there is a prior arbitration agreement between the parties. arbitration may be initiated by one party through a demand upon the other to submit their dispute to arbitration. or for inspection of goods. for hearing witnesses. Failing such agreement. The language/s agreed. the parties are free to agree on the procedure to be followed by the arbitral tribunal in conducting the proceedings. including the amount of the claim. the respondent shall give a written notice to the claimant of the appointment of the respondent’s arbitrator and attach to the notice the arbitrator’s curriculum vitae and the latter’s acceptance of the appointment. (bb) a description of the nature and circumstances of the dispute giving rise to the claim. the demand shall include an invitation of the claimant to the respondent to meet and agree upon such arbitrator. (b) The arbitral tribunal may order that any documentary evidence shall be accompanied by a translation into the language or languages agreed upon by the parties in accordance with paragraph (a) of this Article. arbitration is deemed commenced as follows: (i) In institutional arbitration is commenced in accordance with the arbitration rules of the institution agreed upon by the parties. Article 5. unless the arbitral tribunal considers it inappropriate to allow such amendments having regard to the delay in making it. Article 5. the points at issue and the relief or remedy sought. (b) Failing such agreement. The power conferred upon the arbitral tribunal includes the power to determine admissibility. including the convenience of the parties. the place. the arbitral tribunal may subject to the provision of the ADR Act.ADR (based on ATTY HIGUIT’S OUTLINE)-CHARMAGNE FERRER’S REVIEWER 107 Article 5. and the respondent shall state his/her defense in respect of these particulars. Arbitration shall be deemed commenced upon the agreement by the other party to submit the dispute to arbitration. (ii) In ad hoc arbitration. if any. the place of arbitration shall be in Metro Manila unless the arbitral tribunal. (e) The demand shall required the respondent to name his/her/its/ arbitrator within a period which shall not be less than fifteen (15) days from receipt of the demand. (dd) the relevant agreements. (c) If the arbitration agreement provides for the establishment of an arbitral tribunal of three (3) arbitrators.21 Language (a) The parties are free to agree on the language or languages to be used in the arbitral proceedings. The parties shall be treated with equally and each party shall be given a full opportunity of presenting his/her/its case. Article 5. (a) The parties are free to agree on the place of arbitration. unless otherwise agreed by the parties. the procedure determined by the arbitrator. Article 5. time and date stated therein which shall not be less than thirty (30) days from receipt of the demand. Article 5.22 Statement of Claim and Defense (a) Within the period of time agreed by the parties or determined by the arbitral tribunal. (b) The arbitral tribunal may. Article 5. either party may amend or supplement his/her/its claim or defense during the course of the arbitral proceedings.23 Hearing and Written Proceedings (a) In ad hoc arbitration. experts or the parties. materially and weight of evidence. having regard to the circumstances of the case. other property or documents. conduct the arbitration in such manner as it considers appropriate. the claimant shall state the facts supporting his/her/its claim. (cc) a statement of the relief sought. The parties may submit with their statements all documents they consider to be relevant or may add a reference to the documents or other evidence they will submit. shall be in all hearings and all written statements. unless the parties may have otherwise agreed as to the required elements of such statements. a copy of which shall be attached. unless otherwise specified therein. (b) If the arbitration agreement provides for the appointment of a sole arbitrator. and (ee) appointment of arbitrators and / or demand to appoint. Within said period. shall be . Equal Treatment of Parties. (b) Unless otherwise agreed by the parties. address and description of each of the parties. meet at any place it considers appropriate for consultation among its members. A demand may be in any form stating: (aa) the name. Failing such agreement. relevance. shall decide on a different place of arbitration. (a) Subjected to the provisions of these Rules. This period may be extended by agreement of the parties.18 Determination of Rules of Procedure. including the arbitration agreement. with the agreement of the parties. the demand shall name the arbitrator appointed by the claimant.17.19 Place of Arbitration. orders or other communication by the parties and the arbitral tribunal. (d) Where there is no prior arbitration agreement. arbitration is commenced by the claimant upon delivering to the respondent a demand for arbitration. It shall include the curriculum vitae of the arbitrator appointed by the claimant and the latter’s acceptance of the appointment. the language to be used shall be English or Filipino. the crossexamination and further examination of witnesses. (g) The hearing may proceed in the absence of a party who fails to obtain an adjournment thereof or who. at such hearing. or (b) the arbitrability of a particular claim or counter claim.ADR (based on ATTY HIGUIT’S OUTLINE)-CHARMAGNE FERRER’S REVIEWER 108 followed. fails to be present. represent himself/herself/itself or through a representative. a business center. (j) Each witness shall. unless they are intertwined with factual issues that they cannot be resolved ahead of the hearing on the merits of the dispute. the witnesses and the administrative staff of the arbitral tribunal shall have the right to be present if the parties. the arbitral tribunal shall have the discretion and authority to make the decision. (vi) The delivery of certain types of communications such as pleadings. the manner of payment to the expert and the deposit by the parties or the requesting party of such amount necessary to cover all expenses associated with the referral of such issues to the expert before the expert is appointed. (vii) The issuance of subpoena or subpoena duces tecum by the arbitral tribunal to compel the production of evidence if either party shall or is likely to request it. be required to take an oath/ affirmation before the arbitral tribunal. (iii) The periods for the communication of the statement of claims with or without counterclaims. the arbitral tribunal and the parties shall agree upon any such matters and in default of agreement. the submission of sworn written statements in lieu of oral testimony. the fees to be paid. despite due notice. In institutional arbitration. by himself/herself/itself or through a representative. regard being given to the desirability of conducting and concluding an arbitration without undue delay. their respective representatives. (ix) The possibility of either party applying for an order granting interim relief either with arbitral tribunal or with the court. in consultation with the parties. place and time of the inspection and the manner of (d) The arbitral tribunal shall. upon being informed of the presence of such person and the reason for his/her presence. the period for the submission to the arbitrator by the requesting party of the proposed terms of reference for the expert. and (xii) Such other relevant matters as the parties and the arbitral tribunal may consider necessary to provide for a speedy and efficient arbitration of the dispute. shall be resolved by the arbitral tribunal as threshold issues. (c) To the extent possible. conducting it. and in such case. (x) The possibility of a site or ocular inspection. and. the date. the applicable rules of procedure of the arbitration institution shall be followed. to tell the whole truth and nothing but the truth during the hearing. before giving testimony. In default of agreement of the parties. The arbitral tribunal may deny a request to postpone or to cancel a scheduled hearing on the ground that a party has requested or is intending to request from the court or from the arbitrator an order granting interim relief. at such hearing. and in such case. (v) The manner by which evidence may be offered if an oral hearing is required. charges and expenses of arbitration and the manner and timing of such payments. (viii) The manner by which expert testimony will be received if a party will or is likely to request the arbitral tribunal to appoint one or more experts. fix the date/s and the time of hearing. the arbitral tribunal shall call the parties and their respective counsels to a pre-hearing conference to discuss the following matters: (i) The venue or place/s where the arbitration proceeding may be conducted in an office space. final award and the like that. (e) The hearing set shall not be postponed except with the conformity of the arbitrator and the parties and only for a good and sufficient cause. and the sharing and deposit of any associated fees and expenses. in such case. although in making decision. (i) Issues raised during the arbitration proceeding relating to (a) the jurisdiction of the arbitral tribunal over one or more of the claims or counter claims. if the parties so request. if made by electronic or similar means. (f) A party may. . terms of reference. (iv) The definition of the issues submitted to the arbitral tribunal for determination and the summary of the claims and counterclaims of the parties. the arbitration procedure shall be as provided in this Chapter. a function room or any suitable place agreed upon by the parties and the arbitral tribunal. the purpose of such inspection. shall require further confirmation in the form of a hard copy or hard copies delivered personally or by registered post. the nature of the relief to be applied for. (b) Within thirty (30) days from the appointment of the arbitrator or the constitution of an arbitral tribunal. (xi) The amount to be paid to the arbitral tribunal as fees and the associated costs. regard shall be given to the views expressed by both parties. order granting interim relief. (ii) The manner of recording the proceedings. which may vary per session/hearing/conference. (h) Only parties. interpose no objection thereto. and answer to the counterclaim/s and the form and contents of such pleadings. during the proceedings. is heard or considered. The 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 may not later be used as a ground to invalidate the proceedings. (l) Each party shall provide the other party with a copy of each statement or document submitted to the arbitral tribunal and shall have an opportunity to reply in writing to the other party's statements and proofs. and during the arbitration proceedings. Article 5. all the arbitrators in any controversy must attend all the hearings and hear the evidence of the parties. (cc) To produce or preserve evidence. It shall have the power to subpoena witnesses. or modification thereof. (o) At the close of the hearing. (b) After the constitution of the arbitral tribunal. Such interim measures may include. (iii) The order granting provisional relief may be conditioned upon the provision of security or any act or omission specified in the order. The oath or affirmation shall be required of every witness before his/her testimony. (p) After a hearing is declared closed.ADR (based on ATTY HIGUIT’S OUTLINE)-CHARMAGNE FERRER’S REVIEWER 109 (k) The arbitral tribunal shall arrange for the transcription of the recorded testimony of each witness and require each party to share the cost of recording and transcription of the testimony of each witness. no further motion or manifestation or submission may be allowed except for post-hearing briefs and reply briefs that the parties have agreed to submit within a fixed period after the hearing is declared closed. The arbitral tribunal may also require the exclusion of any witness during the testimony of any other witness. ( a ) unless otherwise agreed by the parties. may be made with the arbitral tribunal. a request for interim measures of protection. the arbitral tribunal shall specifically inquire of all parties whether they have further proof or witnesses to present. (r) Except as provide in section 17 (d) of the ADR Act. (q) Decisions on interlocutory matters shall be made by the sole arbitrator or by the majority of the arbitral tribunal. No arbitrator shall act as a mediator in a any proceeding in which he/she is acting as arbitrator even if requested by the parties. The arbitral tribunal is deemed constituted when the sole arbitrator or the third arbitrator. who has been nominated. the whole truth and nothing but the truth in any testimony. order any party to take such interim measures of protection as the arbitral tribunal may consider necessary in respect of the subject matter of the dispute of the procedure. to testify and/or produce documents when the relevancy and materiality thereof has been shown to the arbitral tribunal. and all negotiations. or (dd) To compel any other appropriate act or omissions. fair and impartial award. (v) the arbitral tribunal shall have the power to required any person to attend a hearing as a witness. (ii) Such relief may be granted: (aa) To prevent irreparable loss or injury. If the arbitrator shall refuse to take an oath or affirmation as required by law and this rule. the arbitral tribunal may. . at the request of a party and in accordance with the this Article. (c) The following rules on interim or provisional relief shall be observed: (i) Any party may request that provisional or interim relief be granted against the adverse party. motu proprio or upon request of a party. (u) the arbitral tribunal shall have the power to administer oaths to. Unless the parties otherwise agree. its decision on interlocutory matters. (bb) To provide security for the performance of an obligation. (m) The arbitral tribunal may require the parties to produce such other documents or provide such information as in its judgment would be necessary for it to render a complete. oral or written. an arbitrator must be sworn by any officer authorized by law to administer an oath or be required to make an affirmation to faithfully and fairly hear and examine the matters in controversy and make a just award according to the best his/her ability and understanding. all witnesses directing them to tell the truth. or require affirmation from. appointment of receivers or detention of property that is the subject of the dispute in arbitration or its preservation or inspection.24 Power of Arbitral Tribunal to Order Interim Muslim. or when the arbitral tribunal. on behalf of the arbitral tribunal. upon receiving a negative reply. the arbitral tribunal shall declare the hearing closed. allows the reopening of the hearing. but shall not be limited. to preliminary injunction directed against a party. (t) Either party may object to the commencement or continuation of an arbitration proceeding unless the arbitrator takes an oath or affirmation as required in this chapter. oral or written. he/she shall be replaced. (s) Before assuming the duties of his/her office. A copy of the arbitrator's oath or affirmation shall be furnished each party to the arbitration. The arbitral tribunal may authorized its chairman to issue or release. has accepted the nomination and written communication of said nomination and acceptance has been received by the party making the request. (n) The arbitral tribunal shall receive as evidence all exhibits submitted by a party properly marked and identified at the time of submission. which they may give or offer in any arbitration hearing. describing in appropriate detail of the precise relief.28 Rules Applicable to the Substance of Dispute. (b) The arbitral tribunal may grant any remedy or relief which it deems just and equitable and within the scope of the agreement of the parties. without prejudice to the rights of any party to petition the court to take measures to safeguard an/or conserve any matter which is the subject of the dispute in arbitration. if. Unless otherwise agreed by the parties. (a) The arbitral tribunal or a party. the arbitral tribunal shall continue the proceedings without treating such failure in itself as an admission of the claimant’s allegations. the arbitral tribunal shall decide in accordance with the terms of the contract and shall take into account the usages of the trade applicable to the transaction. unless otherwise agreed by the parties. before rendering the award. Expert Appointed by the Arbitral Tribunal. Decision Making by the Arbitral Tribunal. any decision of the arbitral tribunal shall be made. by a majority of all its members. Court Assistance in Taking Evidence and Other Matters. goods or other property for his/her inspection. Article 5. which shall include. after delivery of his/her written or oral report.ADR (based on ATTY HIGUIT’S OUTLINE)-CHARMAGNE FERRER’S REVIEWER 110 (iv) Interim provisional relief is requested by written application transmitted by reasonable means to the arbitral tribunal and the party against whom relief is sought. the arbitral tribunal shall terminate the proceedings. (vi) Either party may apply with the court for assistance in implementing or enforcing an interim measure ordered by an arbitral tribunal. The court may grant the request within its competence and according to its rules on taking evidence. the arbitral tribunal may continue the proceedings and make the award based on the evidence before it. any relevant documents. (ii) Protective orders with respect to confidentiality. (vii) A party who does not comply with the order shall be liable for all damages. site or ocular inspection. assistance in enforcing orders of the arbitral tribunal. the finding of the expert engaged by the arbitral tribunal on the matter/s referred to him shall be binding upon the parties and the arbitral tribunal. (a) the claimant fails to communicate his/her/its statement of claim in accordance with paragraph (a) of Article 5. (b) ]the respondent fails to communicate his/her/its statement of defense in accordance with paragraph (a) of Article 5. including all expenses. (b) Unless otherwise agreed by the parties. the arbitral tribunal. Default of a Party. but not be limited to. if a party so request or if the arbitral tribunal considers it necessary. (iii) Orders of the arbitral tribunal pertaining to the subject matter of the dispute that may affect third persons and/or their properties.22 (Statements of Claim and Defense). if so authorized by the parties or all members of the arbitral tribunal. (v) The order either granting or denying an application for interim relief shall be binding upon the parties. or the parties have the opportunity to put questions to him/her and to present expert witnesses in order to testify on the points at issue. (i) may appoint one or more experts to report to it on specific issues to be determined by the arbitral tribunal. and physical examination of properties. Article 5. and the evidence supporting the request. Article 5. (c) any party fails to appear at a hearing or to produce documentary evidence. the arbitral tribunal shall render its written award within thirty (30) days after the closing of all hearings and/or submission of the parties’ respective briefs or if the . (c) upon agreement of the parties. without showing sufficient causes. the specific performance of a contract. In the absence of such agreement. the party against whom relief is requested the ground for the relief. deposition taking. (a) The arbitral tribunal shall decide the dispute in accordance with such law as is chosen by the parties. assistance in taking evidence such as the issuance of subpoena ad testificandum and subpoena duces tecum. and/or (iv) Examination of debtors.26. (d) The arbitral tribunal shall be have the power at any time. Article 5. (b) The arbitral tribunal or a party to the dispute interested in enforcing an order of the arbitral tribunal may request from a competent court. (a) Unless otherwise agreed by the parties. resulting from noncompliance. paid in obtaining the order’s judicial enforcement. including but not limited.27. with the approval of the arbitral tribunal may request from a court. (ii) may require a party to give the expert any relevant information or to produce.22(Statement of Claim and Defense). the expert shall. (c) In all cases. to the following: (i) Interim or provision relief. (a) The arbitration proceedings with more than one arbitrator.25. Article 5. and reasonably attorney’s fees. or to provide access to.29. Philippine law shall apply. participate in a hearing where (b) Unless otherwise agreed upon by the parties. However questions of procedure may be decided by the chairman of the arbitral tribunal. Article 5. within thirty days from the receipt of said award. If the arbitral tribunal considers the request to be justified. (a) The award shall be made in writing and shall be signed by the arbitral tribunal. (b) The award shall state the reasons upon which is based. a copy signed by the arbitrators in accordance with the paragraph (a) of this Article shall be delivered to each party. (c) The mandate of the arbitral tribunal ends with the termination of the arbitration proceedings. the parties may. the arbitral tribunal. the signatures of the majority of all members of the arbitral tribunal shall suffice. The award shall be deemed to have made at that place.31 (Form and Contents of Award) and shall state that it is an award. Pending determination of this issue. the parties settle the dispute. the arbitral tribunal shall fail to do as required. by releasing its final award. or (ii) The parties agree on the termination of the proceedings.34 (Application for Settings Aside in Exclusive Recourse Against the Arbitral Award). unless another period of time has been agreed upon by the parties. the arbitral tribunal to correct in the awards any errors in computation. (b) The arbitral tribunal may correct any errors of the type referred to in paragraph (a) of this Article on its . In arbitration proceedings with more than one arbitrator.33 (Correction and Interpretation of Award) and Article 5.33. any clerical or typographical errors or any errors similar nature (ii) If so agreed by the parties. (a) The arbitration proceedings are terminated by the final award or by an order of the arbitral tribunal in accordance with paragraph (b) of this Article. by releasing its final award. (d) Except as otherwise provided in the arbitration agreement. with notice to the other party. with notice to the other party. request the arbitral tribunal to supply the omission.31.32. the award shall not be deemed final for purposes of appeal.30 (Settlement). loses jurisdiction over the dispute and the parties to the arbitral tribunal. or any post-award proceedings. Article 5. Submitted to him or determination a verified motion to complete a final award may be made within thirty(30) days from its receipt. (c) The award shall state its date and the placed of arbitration as determined in accordance with the paragraph (a) of Article 5. (a) Within thirty (30) days from receipt of the award. may request the arbitral tribunal to give an interpretation of a specific point or part of the award. the arbitral tribunal may for special reason. (d) After the award is made. or affirmed by the arbitral tribunal unless so required on writing by the parties. (e) The award of the arbitral tribunal need not be acknowledged. unless the respondents objects thereto for the purpose of prosecuting his counterclaims in the same proceedings of the arbitral tribunal recognizes a legitimate interest on his part in obtaining a final settlement of the dispute. (b) The arbitral tribunal shall issue an order for the termination of the arbitration proceedings when: (i) The claimant withdraws his claim. within thirty(30) days after the arbitral tribunal shall have declared such proceedings in lieu of hearing closed. correction. subject to the provisions of Article 5.46 (Fees and Costs). vacations. reserved in the final award in order a hearing to quantity costs and determine which party shall bear the costs or apportionment thereof as may be determined to be a equitable. it shall make the connection or give the interpretation within thirty (30) days from receipt of the request. Article 5.30 Settlement. provided that the reason for any omitted signature us stated. Correction and Interpretation of Award. (a) if. However. (b) An award as rendered above shall be made in accordance with the provisions of Article 5. The interpretation shall form part of the award. The failure of the parties to make an objection or make such request within the said period shall be deemed a waiver or such requirement and may no longer be raised as a ground to invalidate the award. (e) Notwithstanding the foregoing. unless the parties have agreed that no reasons are to be given or the award on agreed terms. Such an award has the same status and effect as any other award on the merits of the case. record the settlement in the form of an arbitral award on agreed terms. The arbitral tribunal. Article 5. or (iii) The arbitral tribunal finds that the continuation of the proceedings has for any other reason before unnecessary or impossible. (i) A party may. no motion for reconsideration correction and interpretation of award or additional award shall be with the arbitral tribunal. consent award based on compromise under Article 5. Termination of Proceedings. sworn to under oath. loses jurisdiction over the dispute and the parties to the arbitration.19 (Place of Arbitration). Form and Contents of Award. consent award or award based on compromise. where is shown that the arbitral tribunal failed to resolved an issue. If despite such requirement.ADR (based on ATTY HIGUIT’S OUTLINE)-CHARMAGNE FERRER’S REVIEWER 111 oral hearings shall have been waived. during arbitral proceedings. or (iv) The required deposits are not paid in full in accordance with paragraph (d) of Article 5. This period may be further extended by mutual consent of the parties. Additional Award. If the arbitral tribunal considers the request to be justified. Grounds to Vacate an Arbitral Award. (c) Where a party files a petition with the court to vacate or set aside an award by reason of omission/s that do not affect the merits of the case and may be cured or remedied. the adverse party may oppose that petition and instead request the court to suspend the vacation or setting aside the proceedings for a period of time to give the arbitral tribunal an opportunity to cure or remedy the award or resume the arbitration proceedings or take such other action as will eliminate the grounds for vacation or setting aside. the petitioner may simultaneously. and any application with a court for arbitration assistance and supervision. or (iii) The arbitral tribunal was guilty of misconduct or any form of misbehavior that has materially prejudiced the rights of any party such as refusing to postpone the hearing upon sufficient cause shown or to hear evidence pertinent and material to the controversy. or so imperfectly executed them. (a) The arbitral award may be questioned. Judgment. Article 5. Article 5. with notice to the other party. a party may. modifying. (c) Unless otherwise agreed by the parties. such that a complete. interpretation or an additional award under paragraphs (a) and (c) of this Article. it shall make the additional award within sixty (60) days. Appeal.38. A decision of the court confirming. or vacating an award. Any other ground raised to question. Costs of the application and the proceedings subsequent thereto may be awarded by the court In its discretion. shall. The court when asked to set aside an award.37. setting aside. if necessary. correcting. the amount thereof must be included in the judgment. may. or (ii) There was evident partially or corruption in the arbitral tribunal or any of its members. or (v) The arbitral tribunal exceeded its powers. In the latter case. the period of time within which it shall make a correction. Judgment will be enforced like court judgments. Venue and Jurisdiction. Application for Setting Aside an Exclusive Recourse against Arbitral Award.39.35. the arbitration or settlement agreement. fraud or other undue means. vacate or set aside the arbitral award shall be disregarded by the court. final and definite award upon the subject matter submitted to it was not made. also file the original or verified copy of the award. RULE 6 – Recognition and Enforcement of Awards Article 5.31 (Form and Contents of Award) shall apply to a correction or interpretation of the award to an additional award. or (iv) One or more of the arbitrators was disqualified to act as such under this Chapter and willfully refrained from disclosing such disqualification . at the time that such motion is filled with the court for the entry of judgment thereon. (b) Where a petition to vacate or set aside an award is filed. except appeal. . Confirmation of Award. (d) The arbitral tribunal may extend. any provision limiting the time In which the arbitral tribunal may make a decision shall be deemed applicable to the new arbitral tribunal and to commence from the date of the court’s order. the arbitral tribunal to make an additional award as to claims presented in the arbitral proceedings but omitted from the award. Upon the grant of an order confirming. Proceedings for recognition and enforcement of an arbitration agreement or for vacation or setting aside of an arbitral award. suspend the setting aside proceedings for a period of time determined by it in order to give the arbitral tribunal an opportunity to resume the arbitral proceedings or to take such other action as in the arbitral tribunal’s opinion will eliminate the grounds for setting aside an award. vacated or set aside by the appropriate court in accordance with the Special ADR Rules only on the following grounds: (i) The arbitral award was procured by corruption.. The losing party who appeals from the judgment of the Court confirming an arbitral award shall be required by the Court of Appeals to post a counter-bond executed in favor of the prevailing party equal to the amount of the award in accordance with the Special ADR Rules. The party moving for an order confirming. Article 5. Article 5. modifying or correcting an arbitral award may be appealed to the Court of Appeals in accordance with Special ADR Rules.34. where appropriate and so requested by a party. the members of which shall be chosen in the manner originally provided in the arbitration agreement or submission.ADR (based on ATTY HIGUIT’S OUTLINE)-CHARMAGNE FERRER’S REVIEWER 112 own initiative within thirty (30) days of the date of the award. shall be deemed as special proceedings and shall be filed with the court (a) where the arbitration proceedings are conducted. modifying or correcting an award. (e) The provisions of Article 5. judgment may be entered in conformity therewith in the court where said application is filed. and such papers as may be required by the Special ADR Rules.36. petition the court to remit the case to the same arbitral tribunal for the purpose of making a new or revised final and definite award or to direct a new hearing before the same or new arbitral tribunal. or the oppositor may in the alternative. vacating. may request within thirty (30) days of receipt of the award. If awarded. Article 5. they object.41. The arbitration proceedings.17 (Equal Treatment of Parties) and 5. or notice to. he objects. or in default thereof. In a special proceeding for recognition and enforcement of an arbitral award. where a party has died since it was filed or delivered.43. (2) for the limited purpose of disclosing to the court relevant documents in cases where resort to the court is allowed herein: Article 5. or if any party cannot be served notice at such address. the expenses for conducting a site inspection. or in ad hoc arbitration.42.44. In any such case. (1) with consent of the parties. the parties shall be responsible for the payment of the administrative fees of an arbitration institution administering an arbitration and cost of arbitration. or any other quasijudicial body whether or such appearance is in relation to the arbitration in which he/she appears. (a) The fees of the arbitrators shall be agreed upon by the parties and the arbitrator/s in writing prior to the arbitration. unless admitted to the practice of law in the Philippines. the proceeding may be begun or continued upon the application of. In default of agreement of the parties as to the amount and manner of payment of arbitrator’s fees. or to temporary administrator of his/her estate. or Unless the parties agree to confer such power on the arbitral tribunal. directly or by reference. research and other information where it is shown that the applicant shall be materially prejudiced by an authorized disclosure thereof. Multi-Party Arbitration.ADR (based on ATTY HIGUIT’S OUTLINE)-CHARMAGNE FERRER’S REVIEWER 113 (b) where the asset to be attached or levied upon. Article 5. Article 5. to the inclusion of such additional respondents. Legal Representation in Domestic Arbitration. on jurisdictional grounds. . to the extent possible. however. The latter shall include. as appropriate.46. original party. or (b) that concurrent hearings shall be held. shall be considered privileged and confidential and shall not be published except – Article 5. shall not be authorized to appear as counsel in any Philippine Court. and the proceedings thereupon are the same as where a party dies after a verdict. the court must enter judgment in the name of the (b) In addition to arbitrator’s fees. to their inclusion. Article 5. either by motion or by a special defense in his answer. wither by motion or a special defense in their answer. a party may be represented by any person of his/her/its choice: Provided. the Schedule of Fees that may be approved by the OADR. developments. (c) where any of the parties to the dispute resides or has its place of business. between him/her and the respondent as additional claimants or the additional respondents unless not later than the date communicating his/her answer to the request for arbitration. Article 5. If any. (a)When a single arbitration involves more than two parties. Upon recognizing an award. the court may issue an order extending the time within which notice of a motion to recognize or vacate an award must be served. that the court in which the action or the appeal is pending may issue a protective order to prevent or prohibit disclosure of documents or information containing secret processes. Notice of Proceedings to Parties. Confidentially of Arbitration Proceedings. the expenses for the recording and transcription of the arbitration proceedings. Fees and Costs. his/her executor or administrator. the Schedule of Fees approved by the IBP. the use of a room where arbitration proceedings shall be or have been conducted. the fees of an expert appointed by the arbitral tribunal. Where a party dies after making a submission or a contact to arbitrate as prescribed in these Rules. The additional respondents shall be deemed to have consented to their inclusion in the arbitration unless. on such terms as may be agreed. Consolidation of Proceedings and Concurrent Hearings. (b) When a claimant includes persons who are not parties to or otherwise bound by the arbitration agreement . these Rules. including the records.45. evidence and the arbitral award and other confidential information. or Article 5.18 (Determination of Rules of Procedure) as the arbitral tribunal shall deem appropriate to address possible complexities of a multi-party arbitration. the arbitrator’s fees shall be determined in accordance with the applicable internal rules of the regular arbitration institution under whose rules he arbitration is conducted. The notice shall be sent in at least fifteen (15) days before the date set for the initial hearing of the application. at such party’s last known address. the court shall send notice to the parties at their address of record in the arbitration. The parties may agree that(a) the arbitration proceedings shall be consolidated with other arbitration proceedings. (a) In domestic arbitration conducted in the Philippines.40. not later than the date of communicating their answer to the request for arbitration. Death of a Party. that such representative. the tribunal has no power to order consolidation of arbitration proceedings or concurrent hearings. shall be used subject to such modifications consistent with Articles 5. (b) No arbitrator shall act as mediator in any proceeding in which he/she is acting as arbitrator and all negotiations towards settlement of the dispute must take without the presence of the arbitrators. Provided. or the act to be enjoined is located. (d) in the National Capital Judicial Region at the option of the applicant. on jurisdictional grounds. If an appointing authority has been agreed upon by the parties. 1008. CHAPTER 6 ARBITRATION OF CONSTRUCTION DISPUTES The Construction Industry Arbitration Commission (CIAC). If such payment is not made. the arbitral tribunal may apportion each of such costs between the parties if it determines that apportionment is reasonable. shall promulgate the Implementing Rules and Regulations . (vi) Any fees and expenses of the appointing authority. (iii) The costs of expert advice and of other assistance required by the arbitral tribunal. the arbitral tribunal. (ii) and (iii) of paragraph (c) of this Article. in principle. such as site inspection and expenses for the recording and transcription of the arbitration proceedings. (iv) The travel and other expenses of witnesses to the extent such expenses are provided by the arbitral tribunal. When the arbitral tribunal issues an order for the termination of the arbitral proceedings or makes an award on agreed terms. If the appointing authority consents to provide such a statement. may request each party to deposit an equal amount as an advance for the costs referred to in paragraphs (i). In cases referred to in paragraph (d) of this Article. 1985. when a party so requests and the appointing authority consents to perform the function. the costs of arbitration shall. If such appointing authority has not issued a schedule of fees for arbitrators in international cases. the arbitral tribunal may order the termination of the arbitral proceedings. During the course of the arbitral proceedings. at any time request the appointing authority to furnish a statement setting forth the basis for establishing fees which is customarily followed in international cases in which the authority appoints arbitrators. which has original and exclusive jurisdiction over arbitration of construction disputes pursuant to Executive Order No. If an appointing authority has been agreed upon by the parties and if such appointing authority has issued a schedule of fees for arbitrators in domestic cases which it administers. in fixing its fees shall take that schedule of fees into account to the extent that it considers appropriate in the circumstances of the case. (ii) The travel and other expenses incurred by the arbitrators. s. (e) Except as otherwise agreed by the parties. the arbitral tribunal. shall be free to determine which party shall bear such costs or may apportion such costs between the parties if it determines that appointment is reasonable. any party may. the arbitral tribunal shall fix its fees only after consultation with the appointing authority which may make any comment it deems appropriate to the arbitral tribunal concerning the fees. otherwise known as the "Construction Industry Arbitration Law". the arbitral tribunal shall fix the amounts of any deposits or supplementary deposits only after consultation with the appointing authority which may make any comments to the arbitral tribunal which it deems appropriate concerning the amount of such deposits and supplementary deposits. the arbitral tribunal may request supplementary deposits from the parties. With respect to the costs of legal representation and assistance referred to in paragraph (c) (iii) of this Article. no additional fees may be charged by the arbitral tribunal for interpretation or correction or completion of its award under these Rules. The term "costs" include only: (i) The fees of the arbitral tribunal to be stated separately as to each arbitrator and to be fixed by the arbitral tribunal itself in accordance with this Article. (f) The arbitral tribunal. taking into account the amount in dispute. and when a party so requests and the appointing authority consents to perform the function. (e) Except as provided in the next paragraph. the time spent by the arbitrators and any other relevant circumstances of the case. taking into account the circumstances of the case. be borne by the unsuccessful party. in fixing its fees shall take such information into account to the extent that it considers appropriate in the circumstances of the case. and only to the extent that the arbitral tribunal determines that the amount of such costs is reasonable. taking into account the circumstances of the case. the complexity of the subject matter. on its establishment. the arbitral tribunal shall so inform the parties in order that one of them may make the required payment within such a period or reasonable extension thereof as may be determined by the arbitral tribunal. (d) The fees of the arbitral tribunal shall be reasonable in amount. However. the arbitral tribunal shall render an accounting to the parties of the deposits received and return any unexpended balance to the parties.ADR (based on ATTY HIGUIT’S OUTLINE)-CHARMAGNE FERRER’S REVIEWER 114 (c) The arbitral tribunal shall fix the costs of arbitration in its award. it shall fix the costs of arbitration referred to in paragraph (a) of this Article in the context of that order or award. If the required deposits are not paid in full within thirty (30) days after receipt of the request. the arbitral tribunal. After the award has been made. (v) The costs for legal representation and assistance of the successful party if such costs were claimed during the arbitral proceedings. If the other ADR form/process is more akin to arbitration (i. Applicability of the Rules on Arbitration. of the amount for which a party may be liable to the other if the dispute were made subject to a binding process. define those that are contentious.e. The opinion shall be non-binding and shall set forth how the neutral third person would have ruled had the matter been subject to a binding process. (b) neutral evaluation. Chapter 3 governing Mediation shall have suppletory application to the extent that it is not in conflict with the agreement of the parties or this Chapter. or (iv) If despite agreement on the foregoing and the lapse of the period of time stipulated for the appointment. Scope of Application and General Principles.ADR (based on ATTY HIGUIT’S OUTLINE)-CHARMAGNE FERRER’S REVIEWER 115 governing arbitration of construction disputes. clarify the issues. (c) mini-trial. when feasible.e. The evaluation or assessment shall indicate the relative strengths and weakness of the positions of the parties. (f) The neutral third person shall issue a written evaluation or assessment within thirty (30) days from the conclusion of the evaluation process.4.6. file a motion for the court to refer the parties to other ADR forms/processes. Article 7. Submission of Settlement Agreement. Except as otherwise agreed. Article 7. (e) a combination thereof. (e) The neutral third person may structure the evaluation process in any manner he/she deems appropriate. (d) The neutral third person may request either party to address additional issues that he/she may consider necessary for a complete evaluation/assessment of the dispute. incorporating therein the pertinent provisions of the ADR Act. or fail to provide for: CHAPTER 7 OTHER ADR FORMS (i) The desired qualification of the neutral third person.2. either party may. Chapter 5 governing Domestic Arbitration shall have suppletory application to the extent that it is not in conflict with the agreement of the parties or this Chapter.. Article 7. (c) The parties shall submit and exchange position papers containing the issues and statement of the relevant facts and appending supporting documents and affidavits of witnesses to assist the neutral third person in evaluating or assessing the dispute. However. or (f) any other ADR form. the parties are unable to select a neutral third person or appointing authority. Applicability of the Rules on Mediation. as defined under paragraph C1 of Article (Definition of Terms). In the absence of said agreement. either party may request the default appointing authority. If a dispute is already before a court. the parties. (b) If the parties cannot agree on. the parties may jointly move for suspension/dismissal of the action pursuant to Article 2030 of the Civil Code of the Philippines. this Chapter shall apply and supply the deficiency in the agreement of the parties for matters involving the following forms of ADR: (a) early neutral evaluation. the basis for the evaluation or assessment. In the course thereof. even after pre-trial. then. RULE 1 – General Provisions (ii) The manner of his/her selection. Referral. Neutral or Early Neutral Evaluation. this Rule shall apply. before and during pre-trial.5. If the other ADR form/process is more akin to arbitration (i. the neutral third-person has the power to make a binding resolution of the dispute). the neutral third person may identify areas of agreement. (d) mediation-arbitration. mini-trial or mediation-arbitration. Article 7. and an estimate. (g) There shall be no ex-parte communication between the neutral third person and any party to dispute without the consent of all parties. the neutral third-person merely assists the parties in reaching a voluntary agreement).. and encourage the parties to agree on a definition of issues and stipulate on facts or admit the genuineness and due execution of documents. Article 7.3. including any paper prepared by a party to be communicated to the neutral third person or to the other party as part of . (h) All papers and written presentations communicated to the neutral third person. Either party may submit to the court before which the case is pending any settlement agreement following a neutral or an early neutral evaluation.1. at any time during court proceedings. RULE 2 – Neutral or Early Neutral Evaluation Article 7. (a) The neutral or early neutral evaluation shall be governed by the rules and procedure agreed upon by (iii) The appointing authority (not IBP) who shall have the authority to make the appointment of a neutral third person. to make the appointment taking into consideration the nature of the dispute and the experience and expertise of the neutral third person. (c) A contingency fee arrangement shall not be allowed. . The summary shall identify the specific factual or legal issue or issues. (e) Each party shall submit a brief executive summary of the dispute in sufficient copies as to provide one copy to each mini-trial panel member and to the adverse party. neutral or early neutral evaluation or any other ADR process. the fees shall be determined by the ADR institution or by the OADR. Mini-Trial. act as arbitrator of the same dispute. in a written agreement. (ii) In ad hoc ADR. (iii) In the absence of a schedule of fees approved by the ADR institution or by the OADR. (b) No Person shall having been engage and having acted as mediator of a dispute between the parties. the mini-trial panel member/s may ask clarificatory questions from any of the presentors. and complexity of the process. The parties may agree to appoint one or more (but equal in number per party) senior executive/s. and shall. to sit as mini-trial panel members. following a failed mediation. the fees to be paid and manner of payment for his her services. unless the parties. the amount in dispute and the professional standing of the ADR professional.7. for one hour and the rebuttal or surrebuttal shall be thirty (30) minutes. the neutral third person shall assist the proceedings shall be governed by Chapter 3 of Mediation. (b) n the absence of such agreement. (b) A mini-trial shall be conducted either as: (i) a separate dispute resolution process.8. the parties shall appear before the mini-trial panel members. he/she shall preside over the mini-trial. expressly authorize the mediator to hear and decide the case as an arbitrator (c) 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. executive the appropriate oath or affirmation of office as arbitrator in accordance with these Rules. (g) After the mini-trial. Unless the parties agree on a shorter or longer period. the mini-trial panel members shall negotiate a settlement of the dispute by themselves. the presentation-in-chief shall be made. the fees for the services of the ADR provider/practitioner shall be determined as follows: (i) If the ADR procedure is conducted under the rules and/or administered by an institution regularly providing ADR services to the general public. The amount that may be allowed to an ADR professional may not be made dependent upon the success of his/her effort in helping the parties to settle their dispute. shall be treated as confidential. (c) The parties may agree that a mini-trial be conducted with or without the presence and participation of a neutral third person. Mediation–Arbitration (a) A MediationArbitration shall be governed by the rules and procedure agreed upon by the parties. if any. this Rule shall apply. and the neutral third person’s written non-binding assessment or evaluation. (a) A mini-trial shall be governed by the rules and procedure agreed upon by the parties. the fees shall be determined in accordance with the schedule of fees approved by the OADR. RULE 3 – Mini-Trial RULE 4 – Mediation-Arbitration Article 7. The lawyer and/or representative of each party may thereafter offer rebuttal or sur-rebuttal arguments. If a neutral third person is agreed upon and chosen. or (ii) a continuation of mediation.Costs and Fees Article 7. The lawyer of each party and/or authorized representative shall present his/her case starting with the claimant followed by the respondent. he/she shall agree with the parties on the cost of the ADR procedure. before entering upon his/her duties. The appointment of a mini-trial panel member/s shall be communicated to the other party. Chapter 5 on Domestic Arbitration. the fees of the ADR professional shall be determined in accordance with schedule of fees approved by such institution. (f) At the date time and place agreed upon. (a) Before entering his/her duties as ADR Provider .ADR (based on ATTY HIGUIT’S OUTLINE)-CHARMAGNE FERRER’S REVIEWER 116 the dispute resolution process. In cases where a neutral third person is appointed. without interruption. rebuttal or surrebuttal. as the case may be.9 Costs and Fees. At the end of each presentation. Article 7. Chapter 5 on Mediation shall first apply and thereafter. In the absence of said agreement. In the absence of said agreement. RULE 5. Each party may attach to the summary a more exhaustive recital of the facts of the dispute and the applicable law and jurisprudence. (d) The senior executive/s chosen to sit as mini-trial panel members must be duly authorized to negotiate and settle the dispute with the other party. on its behalf. This appointment shall constitute a representation to the other party that the mini-trial panel member/s has/have the authority to enter into a settlement agreement binding upon the principal without any further action or ratification by the latter. thirty (30) days for first level courts and sixty (60) days for regional trial courts. OTHER SC ISSUANCES ON ADR 1. insofar as the funding requirements of the OADR is concerned. On the basis of his neutral evaluation. The judge conducting the JDR is called the JDR judge instead of pre-trial judge because under the revised guidelines. or a combination of any of the above”. The concept is that the parties will be “more spontaneous once they are assured that the JDR judge will not be the one to try the case”. 2009 1. No. December 4. “most trial judges go through the function of exploring settlement perfunctorily for various reasons. to be conducted by the trial judge instead of the judge who conducted JDR.ADR (based on ATTY HIGUIT’S OUTLINE)-CHARMAGNE FERRER’S REVIEWER 117 CHAPTER 8 MISCELLANEOUS PROVISION Article 8. article or provision of these Rules are declared invalid or unconstitutional.5 Effectivity Clause. the Philippine Supreme Court adopted the rules of the new judicial dispute resolution (JDR) system of the Philippines (described as an “enhanced pre-trial proceeding”) under its on-going JURIS Project. As a mediator and conciliator. As an explanatory note. 308 of the Revised Penal Code. These periods may be extended upon the discretion of the JDR judge. the general rule is that “the JDR Judge shall not preside over the trial of the same case when mediation did not succeed”. As such. August 29. the judge persuades the parties to reconsider their prior reluctance to settle their case amicably. Article 8.1. These Rules or any portion hereof may be amended by the Secretary of Justice. i.4 Transitory Provisions. for the amicable settlement of cases. 8. The concept is that the JDR judge acts as “the mediator. the other parts hereof not affected thereby shall remain valid. the conciliator. The heads of department and agencies concerned. early neutral evaluator. 06-22. He shall be called the JDR judge. including fear of being disqualified if he goes into the process more intensively”. is now part of the cases for referral to mediation. A limited period is imposed for settlement of JDR cases. The civil aspect of theft.. shall immediately include in their annual appropriation the funding necessary to implement programs and extend services required by the ADR Act and these Rules. The JDR judge “may preside over the trial proceedings upon joint request of both parties”. the judge assesses the relative strengths and weaknesses of each party's case and makes a non-binding and impartial evaluation of the chances of each party's success in the case. “the case is transferred to the pairing court to proceed with trial”. Judicial dispute resolution (JDR) In En Banc A. JUDICIAL DISPUTE RESOLUTION 1. the case may be archived upon motion of the prosecution with concurrence of the private complainant and approval by the judge. Considering the procedural character of the ADR Act and these Rules. Article 8. pre-trial proper is resumed after JDR. 2006. In general. as amended. as Amended”. A case may be referred to JDR “even after conclusion of the pre-trial and during the trial itself”. As a neutral evaluator.e. Article 8. The Court has piloted the new concept in selected trial courts in the Philippines which are called “JURIS model courts”. the Court noted that despite the priority given by Rule 18 of the Rules of Court (“pre-trial”). but this time. under Art. If any part. the judge facilitates the settlement discussions between parties and tries to reconcile their differences. “Re: PhiLJA Resolution No. APPROVED. the provisions of these Rules shall be applicable to all pending arbitration. re: Revised Guidelines for the Implementation of an Enhanced Pre-Trial Proceeding under the JURIS Project. Article. 04-1-12-SC-PhilJA.3 Funding.M. If the case is still not settled in JDR. and (2) pretrial proper to trial and judgment.2 Separability Clause. mediation or other ADR forms covered by the ADR Act if the parties agree. Judicial proceedings shall be divided into two stages: (1) from the filing of a complaint. These Rules shall take effect fifteen (15) days after the completion of its publication in at least two (2) national newspapers of general circulation. . especially the Department of Justice. Where settlement on the civil aspect has been reached in criminal cases covered by mediation but the period of payment in accordance with the terms of settlement exceeds one (1) year. to the conduct of CAM and JDR during the pre-trial stage. the concept is that “mediatable cases” are referred to Court-Annex Mediation (CAM) for mediation under accredited mediators in the Philippine Mediation Center (PMC) and subsequently referred to Judicial Dispute Resolution (JDR) “for further mediation by the judges” if it is not resolved under CAM. Amendments. The judge to whom the case has been originally raffled shall preside over the first stage. A party who appears without the required authorization may be similarly sanctioned If settlement is reached. If the motion is granted. parties may file a joint motion requesting that the case be tried by said special court despite the judge thereon having been the JDR judge. or mediation to the trial judge or to any other person. To safeguard the confidentiality of mediation proceedings. early neutral evaluation. Whatever the result of the mediation may be. by the nearest court (or pair court. the JDR shall be conducted by the pairing judge in multiple sala courts. upon the request of the present party. Among others. and Theft. “the judge of the commercial court shall be the trial judge”. with assistance of their counsel. Whatever the result of the JDR may be. Where JDR does not succeed. The pilot-test shall apply to the following cases: (1) All civil cases. since “only mediation is involved”. In Family Courts. merely for the purpose of determining unresolved issues”. A recommendation to impose sanctions shall be made to the JDR judge by the mediator before whom the absence took place. as the case may be”. up to treble the amount incurred payable on or before the next mediation session. the case is always returned to the originating court for appropriate action . or in single sala courts. the JDR judge may require the nonappearing party to reimburse the appearing party his costs. 7160. otherwise known as the 1991 Local Government Code. if any). including dismissal of the case. it shall be raffled to another branch.either for the approval of the compromise agreement or for trial. Where compliance with the compromise agreement is forthwith made or the claim is otherwise settled. (3) The civil aspect of BP 22 cases. All JDR conferences shall be conducted in private. In single sala courts. if there is another family court in the same JURIS site. the JDR shall be conducted by the pair judge of the commercial court. the parties shall instead submit a satisfaction of claims or mutual withdrawal of the complaint and counterclaim upon which the Court shall enter an order dismissing the case. and (5) The civil aspect of Estafa. If all parties are absent despite due notice. The JDR judge may. except those which by law may not be compromised.either for the approval of the compromise agreement or for trial. including attorney's fees for that day. the mediator shall motu proprio recommend the imposition of proper sanctions upon all of them. the case shall be transferred for mediation to the nearest court (or pair court. where the rest of the judicial proceedings up to judgment shall be held. the case is “always returned to the originating court for appropriate action . Cases may be referred to JDR even during the trial stage upon joint motion of the parties. however. and cases covered by the Rule on Summary Procedure. if the case is not resolved during JDR. In Commercial Courts. (2) Cases cognizable by the Lupong Tagapamayapa and those cases that may be referred to it by the judge under Section 408. the parties. “the trial judge shall be that of the family court which did not conduct JDR proceedings”. settlement of estates. as the case may be.ADR (based on ATTY HIGUIT’S OUTLINE)-CHARMAGNE FERRER’S REVIEWER 118 In multiple sala courts. Chapter VII of the Republic Act No. Any incidents or motions filed during the first stage shall be dealt with by the JDR judge at his discretion. shall draft the compromise agreement for approval of the court by judgment upon a compromise. if any). (4) The civil aspect of quasi-offenses under Title 14 of the Revised Penal Code. Libel. “confer in confidence with the mediator who previously mediated the case. The judge for that stage shall be called the trial judge. the JDR judge shall not pass on any information obtained in the course of conciliation. due to the special nature of a family dispute for which specialized family courts have been designated. A party who fails to appear for mediation or JDR conference may be imposed the appropriate sanctions as provided for in Rule 18 of the Rules of Court and the relevant issuances of the Supreme Court. . However.