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2014 BAR POINTERS

IN ALTERNATIVE DISPUTE RESOLUTION


(By: Atty. J-Vit B. Capellan)

I.

RELEVANT LAWS.
1.

NEW CIVIL CODE.


Art. 1308. The contract must bind both contracting parties;
its validity or compliance cannot be left to the will of one of them.
Art. 2028. A compromise is a contract whereby the parties,
by making reciprocal concessions, avoid a litigation or put an end
to one already commenced.
Art. 2029. The court shall endeavor to persuade the
litigants in a civil case to agree upon some fair compromise.
Art. 2030. Every civil action or proceeding shall be
suspended:
(1) If willingness to discuss a possible compromise is
expressed by one or both parties; or
(2) If it appears that one of the parties, before the
commencement of the action or proceeding, offered to discuss a
possible compromise but the other party refused the offer.
The duration and terms of the suspension of the civil action
or proceeding and similar matters shall be governed by such
provisions of the rules of court as the Supreme Court shall
promulgate. Said rules of court shall likewise provide for the
appointment and duties of amicable compounders.
Art. 2042. The same persons who may enter into a
compromise may submit their controversies to one or more
arbitrators for decision.

2.

PERTINENT SPECIAL LAWS/RULES:


2.1.
R.A. No. 876 THE ARBITRATION LAW
2.2.
E.O. No. 1008 CONSTRUCTION INDUSTRY ARBITRATION LAW
2.3.
CIAC REVISED RULES OF PROCEDURE GOVERNING CONSTRUCTION
ARBITRATION, AS AMENDED
2.4.
R.A. No. 9285 ALTERNATIVE DISPUTE RESOLUTION ACT OF 2004
2.5.
A.M. No. 07-11-08-SC - SPECIAL RULES OF COURT ON ALTERNATIVE
DISPUTE RESOLUTION
2.6.
DOJ DEPARTMENT CIRCULAR NO. 98 - IMPLEMENTING RULES AND
REGULATIONS OF THE ALTERNATIVE DISPUTE RESOLUTION ACT OF
2004.
2.7.
NEW YORK CONVENTION - CONVENTION ON THE RECOGNITION
AND ENFORCEMENT OF FOREIGN ARBITRAL AWARDS adopted by the
UNITED NATIONS on 10 JUNE 1958, ratified by the Philippine Senate under
SENATE RESOLUTION No. 71.
2.8.
MODEL LAW - MODEL LAW ON INTERNATIONAL COMMERCIAL
ARBITRATION, adopted by the UNITED NATIONS COMMISSION ON
INTERNATIONAL TRADE LAW (UNCITRAL) on 21 JUNE 1985.

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II. RELEVANT CONCEPTS/SUBJECTS.


1.

WHAT IS AN ALTERNATIVE DISPUTE RESOLUTION?


ADR - means any process or procedure used to resolve a dispute or controversy,
other than by adjudication of a presiding judge of a court or an officer of a government
agency, in which a neutral third party participates to assist in the resolution of issues,
which includes arbitration, mediation, conciliation, early neutral evaluation, mini-trial, or
any combination thereof. (Sec. 3, R.A. No. 9285)

2.

WHAT IS COMMERCIAL ARBITRATION?


Any trade transaction for the supply or exchange of goods or services; distribution
agreements; construction of works; commercial representation or agency; factoring;
leasing, consulting; engineering; licensing; investment; financing; banking; insurance;
joint venture and other forms of industrial or business cooperation; carriage of goods or
passengers by air, sea, rail or road. (Sec. 21, R.A. No. 9285)

3.

PRIVATE LITIGATION DISTINGUISHED FROM PUBLIC LITIGATION.


3.1.

3.2.

In Private Litigation:
3.1.1. There is private-party autonomy in the resolution of disputes or the
freedom of the parties to make their own arrangements to resolve their
disputes;
3.1.2. Neutral third party participates to assist in the resolution of issues, which
includes arbitration, mediation, conciliation, early neutral evaluation,
mini-trial, or any combination thereof;
3.1.3. Parties have the freedom to choose either accredited or non-accredited to
act as arbitrator, mediator, conciliator, neutral party evaluator;
3.1.4. Voluntary dispute resolution;
In Public Litigation:
3.2.1. Disputes are resolved pursuant to the application or interpretation of laws
and rules of procedure;
3.2.2. Adjudication of a presiding judge of a court or an officer of a government
agency;
3.2.3. Parties do not choose the adjudicator or hearing officer;
3.2.4. Parties are subjected to the operative force (i.e. jurisdiction, compulsory
processes, etc.) of the court or government agency;

4.

MODES OF ADR.
4.1.
Arbitration
4.2.
Mediation
4.3.
Conciliation
4.4.
Negotiation
4.5.
Neutral Early Evaluation/Mini-Trial

5.

JUDICIAL DISPUTE RESOLUTION DISTINGUISHED FROM ARBITRATION.


5.1.
In JDR:
5.1.1. The framework is based on the processes of mediation, conciliation or
early neutral evaluation which entails the submission of a dispute before a
"JDR judge" who shall merely "facilitate settlement" between the parties
in conflict or make a "non-binding evaluation or assessment of the chances
of each party's case."
5.1.2. The JDR judge lacks the authority to render a resolution of the dispute that
is binding upon the parties in conflict.
5.2.
In Arbitration:
5.2.1. The dispute is submitted to an arbitrator, who is a neutral third person or a
group of thereof;
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5.2.2. An Arbitrator or Arbitral Tribunal shall have the authority to render a


resolution binding upon the parties.
6.

CHOICE OF LAW AND CHOICE OF PROCEDURE.


6.1.
Freedom to Adopt Procedures to Resolve or Settle their Controversies.
6.2.
Whenever the parties agree to submit their dispute to mediation by an institution it
is deemed to include the agreement to be bound by the institutional rules of such
body.
6.3.
An agreement to submit a dispute to mediation by any institution shall include an
agreement to be bound by the internal mediation and administrative policies of
such institution. Further, an agreement to submit a dispute to mediation under
international mediation rule shall be deemed to include an agreement to have such
rules govern the mediation of the dispute and for the mediator, the parties, their
respective counsel, and nonparty participants to abide by such rules.
In case of conflict between the institutional mediation rules and the provisions of
this Act, the latter shall prevail. (Sec. 16)

7.

EXCLUSIONS IN ADR.
7.1.
Labor disputes covered by Presidential Decree No. 442, otherwise known as the
Labor Code of the Philippines, as amended and its Implementing Rules and
Regulations;
7.2.
Civil status of persons;
7.3.
Validity of a marriage;
7.4.
Any ground for legal separation;
7.5.
Jurisdiction of courts;
7.6.
Future legitime;
7.7.
Criminal liability;
7.8.
And those which by law cannot be compromised. (Sec. 6, R.A. No. 9285)

8.

SOME ADR PROVIDERS.


8.1.
Some Institutional Providers:
8.1.1. CIAC (Construction Industry Arbitration Commission)
8.1.2. PDRCI (Philippine Dispute Resolution, Inc.)
8.1.3. ICC (International Chamber of Commerce)
8.1.4. SIAC (Singapore International Arbitration Center)
8.1.5. HKIAC (Hong Kong International Arbitration Center)
8.2.
Ad Hoc:
8.2.1. Parties have not identified their procedural rules that shall govern their
arbitral proceedings;
8.2.2. Parties determine their own procedural rules as they undergo arbitration;

III. POLICIES (Rule 2.2. Special ADR Rules; Note: KOPPEL CASE).
1.

Arbitration agreement is the law between the parties and that they are expected to abide
by it in good faith

2.

Courts shall not refuse to refer parties to arbitration for reasons including, but not
limited to, the following:
2.1.
The referral tends to oust a court of its jurisdiction;
2.2.
The court is in a better position to resolve the dispute subject of arbitration;
2.3.
The referral would result in multiplicity of suits;
2.4.
The arbitration proceeding has not commenced;
2.5.
The place of arbitration is in a foreign country;
2.6.
One or more of the issues are legal and one or more of the arbitrators are not
lawyers;
2.7.
One or more of the arbitrators are not Philippine nationals; or
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2.8.

One or more of the arbitrators are alleged not to possess the required qualification
under the arbitration agreement or law.

3.

Where court intervention is allowed under ADR Laws or the Special ADR Rules, courts
shall not refuse to grant relief for any of the following reasons:
3.1.
Prior to the constitution of the arbitral tribunal, the court finds that the principal
action is the subject of an arbitration agreement; or
3.2.
The principal action is already pending before an arbitral tribunal.

4.

The Special ADR Rules recognize the principle of competence-competence - which


means that the arbitral tribunal may initially rule on its own jurisdiction, including any
objections with respect to the existence or validity of the arbitration agreement or any
condition precedent to the filing of a request for arbitration.

5.

The Special ADR Rules recognize the principle of separability of the arbitration
clause - which means that said clause shall be treated as an agreement independent of
the other terms of the contract of which it forms part. A decision that the contract is null
and void shall not entail ipso jure the invalidity of the arbitration clause.

6.

Judicial restraint. In resolving the petition, the court must exercise judicial restraint in
accordance with the policy set forth in Rule 2.4 deferring to the competence or
jurisdiction of the arbitral tribunal to rule on its competence of jurisdiction.

IV. ARBITRATION AGREEMENT.


1.

FORMS:
1.1.
Arbitral Agreement or Clause;
1.2.
Submission Agreement;

2.

ARBITRAL AGREEMENT OR CLAUSE DISTINGUISHED FROM SUBMISSION.


2.1.
Arbitral Agreement or Clause (Pre-causal consent) the parties to any contract
agree in such contract to settle by arbitration a controversy thereafter arising
between them.
2.2.
Submission Agreement (Present causal consent) no pre-existing arbitration
agreement, but parties subsequently agree to submit to arbitration any controversy
existing between them at the time of the submission and which may be the subject
of an action.

V. ARBITRATION LAW (under R.A. No. 876).


1. PRELLIMINARY PROCEDURE:
1.1.
IN CASE OF ARBITRAL AGREEMENT/CLAUSE:
1.1.1. Demand/request for arbitration; (Not applicable in controversies covered
by CIAC)
1.1.2. Statement of the nature of the controversy;
1.1.3. Amount involved, if applicable;
1.1.4. Relief sought;
1.1.5. Attached true copy of the contract providing the arbitration;
1.1.6. Demand shall be served in person or registered mail;
1.1.7. Should the contract provides for the appointment of single arbitrator:
a. Indicate the time and date within which the parties shall agree upon such
arbitrator;
1.1.8. Should the contract provides for the appointment of three arbitrators:
a. Indicate the name of the arbitrator appointed;
b. Require the other party within 15 days from notice/receipt to make an
advice in writing the name of the person appointed by the second party;
1.2.
The 2 arbitrators appointed must agree on the third arbitrator within 10 days from
the date of such notice;
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1.3.

2.

In case of default by the other party in answering the demand, aggrieved party
may file, through a verified petition, with the RTC having jurisdiction of the
parties:
1.3.1. A copy of the demand/request for arbitration;
1.3.2. A statement that an original demand was sent and which set forth:
a. The nature of the action;
b. Amount involved, if applicable;
c. Relief sought;
d. Attached true copy of the contract providing for arbitration;

SAME PROCEDURE TO BE FOLLOWED IN SUBMISSION AGREEMENTS.

3.

HEARING BY COURT IN CASE OF FAILURE, NEGLECT OR REFUSAL TO


ARBITRATE.
3.1.
File an application by way of a verified petition with the RTC for an order
directing that such arbitration to proceed in the manner provided in the agreement;
3.2.
Notice to the defaulting party;
3.3.
RTC shall summarily hear the parties:
3.3.1. If the RTC is satisfied that the making of the agreement or such failure to
comply therewith is not in issue, it shall issue an order directing the parties
to proceed to proceed to arbitration in accordance with the terms of the
agreement;
3.3.2. If the making of the agreement or default be in issue, the RTC shall
proceed to summarily hear such issue;
3.4.
Should it be found that there is no agreement or no default, the proceeding shall
be dismissed;
3.5.
Should it be found that there was written provision for arbitration was made or
there is a default in proceeding thereunder, the RTC shall direct the parties to
proceed with the arbitration in accordance with the terms thereof;

4.

ARBITRATOR(S).
4.1.
QUALIFICATIONS:
4.1.1. Must be of legal age;
4.1.2. In full-enjoyment of his civil rights;
4.1.3. Knows how to read and write;
4.1.4. Not related by blood or marriage within the sixth degree to either party to
the controversy;
4.1.5. No financial, fiduciary or other interest in the controversy or cause to be
decided or in the result of the proceeding, or
4.1.6. Has any personal bias, which might prejudice the right of any party to a
fair and impartial award;
4.2.

4.3.

5.

No party shall select as an arbitrator any person to act as his champion or to


advocate his cause.
If, after appointment but before or during hearing, a person appointed to serve as
an arbitrator shall discover any circumstances likely to create a presumption of
bias, or which he believes might disqualify him as an impartial arbitrator, the
arbitrator shall immediately disclose such information to the parties. Thereafter
the parties may agree in writing:
4.3.1. to waive the presumptive disqualifying circumstances; or
4.3.2. to declare the office of such arbitrator vacant. Any such vacancy
shall be filled in the same manner as the original appointment was
made. (Sec. 10, R.A. No. 876)

CHALLENGE OF ARBITRATOR(S).
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5.1.

The arbitrators may be challenged only for the reasons mentioned in Sec 10, R.A.
No. 876 which may have arisen after the arbitration agreement or were unknown
at the time of arbitration.
The challenge shall be made before them.
If they do not yield to the challenge, the challenging party may renew the
challenge before the RTC of the province or city in which the challenged
arbitrator, or, any of them, if there be more than one, resides. While the
challenging incident is discussed before the court, the hearing on arbitration
shall be suspended, and it shall be continued immediately after the court has
delivered an order on the challenging incident. (Sec.11, R.A. No. 876)

5.2.

GROUNDS FOR CHALLENGE (Under the Model Law)


5.2.1. When the person is approached in connection with a possible appointment
as an arbitrator, he shall disclose any circumstances likely to give rise to
justifiable doubts as to his impartiality or independence. An arbitrator
from the time of his appointment and throughout the arbitral proceedings,
shall without delay disclose any such circumstances to the parties unless
they have already been informed of them by him.
5.2.2. An arbitrator may be challenged only if circumstances exist that give rise
to justifiable doubts as to his impartiality or independence, or if he does
not possess qualifications agreed to by the parties. A party may challenge
an arbitrator appointed by him, or in whose appointment he has
participated, only for reasons of which he becomes aware after the
appointment has been made.

5.3.

CHALLENGE PROCEDURE. (Under the Model Law)


5.3.1. The parties are free to agree on a procedure for challenging an arbitrator,
subject to the provisions of paragraph (3) of thia article.
5.3.2. Failing such agreement, a party who intends to challenge an arbitrator
shall, within 15 days after becoming aware of the constitution of the
arbitral tribunal or after becoming aware of any circumstance referred to
in article 12.2., send a written statement of the reasons for the challenge to
the arbitral tribunal. Unless the challenged arbitrator withdraws from his
office or the other party agrees to the challenge, the arbitral tribunal shall
decide on the challenge.
5.3.3. If a challenge under any procedure agreed upon by the parties or the
procedure of paragraph (2) of this article is not successful, the challenging
party may request, within 30 day after having received notice of the
decision rejecting the challenge, the court or other authority specified in
article 6 to decide on the challenge, which decision shall be subject to no
appeal; while such a request is pending, the arbitral tribunal, including the
challenge arbitrator, may continue the arbitral proceedings and make an
award.

6.

VACATING AN ARBITRAL AWARD.


6.1.
GROUNDS:
6.1.1. The award was procured by corruption, fraud, or other undue means; or
6.1.2. That there was evident partiality or corruption in the arbitrators or any of
them; or
6.1.3. 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;
6.1.4. That one or more of the arbitrators was disqualified to act as such under
section 9 of R.A. No. 876, and willfully refrained from disclosing such
disqualifications or of any other misbehavior by which the rights of any
party have been materially prejudiced; or
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6.1.5. 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. (Sec. 24, R.A. No. 876)
7.

MODIFYING OR CORRECTING AN ARBITRAL AWARD.


7.1.
GROUNDS:
7.1.1. 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
7.1.2. Where the arbitrators have awarded upon a matter not submitted to them,
not affecting the merits of the decision upon the matter submitted; or
7.1.3. 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. (Sec. 25, R.A. 876)

VI.

SPECIAL RULES OF COURT ON ALTERNATIVE DISPUTE RESOLUTION


(A.M. No. 07-11-08-SC)
1.

All proceedings under the Special Rules on ADR are special proceedings.

2.

Proceedings are conducted summarily in certain cases.

3.

4.

In cases covered by the Special ADR Rules no summons is issued, a court acquires
authority to act on the petition or motion upon proof of jurisdictional facts, i.e., that the
respondent was furnished a copy of the verified petition and the notice of hearing. (Rule
1.9.)
3.1. Prior service is jurisdictional and material to satisfy the requirement of due process.
SERVICE AND FILING OF PETITIONS IN SUMMARY PROCEEDINGS.
4.1. Before filing in court, service of the verified petition coupled by a notice of hearing
unto the respondent through:
4.1.1. Personal service, proven by an affidavit of the server;
4.1.2. Registered mail, shown by the signed courier proof of delivery (postal
registry return cards);
4.1.3. Private courier, proven by an affidavit executed by the responsible officer
of the private courier service showing the transmittal; or by the signed
courier proof of delivery.
4.1.4. In case of refusal or failure, by an affidavit of the server stating the facts
and circumstances of refusal or failure to receive. (Rule 1.9.)
4.2. VERIFICATION AND SUBMISSIONS.
4.2.1. Need to be Verified:
a. Any pleading, motion, opposition, comment, defense or claim.
b. Attached legal brief of counsel which state the pertinent facts, legal
arguments in support of a partys position in the case, applicable laws
and jurisprudence.
c. All initiatory pleadings must contain a certification against forum
shopping.
4.3. PROHIBITED SUBMISSIONS:
4.3.1. Motion to dismiss
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4.3.2.
4.3.3.
4.3.4.
4.3.5.

Motion for bill of particulars


Motion for new trial or for reopening of trial
Petition for relief from judgment
Motion for extension, except in cases where an ex-parte temporary order
of protection has been issued
4.3.6. Rejoinder to reply
4.3.7. Motion to declare a party in default; and
4.3.8. Any other pleading specifically disallowed under any provision of the
Special ADR Rules.
5.

SERVICE AND FILING OF PLEADINGS, MOTIONS AND OTHER PAPERS IN


NON-SUMMARY (Regular) PROCEEDINGS.
5.1. Initiatory pleadings filed with the court;
5.2. Court shall cause the service of the initiatory pleading/petition upon the respondent
through:
5.2.1. Personal service;
5.2.2. Registered postal mail;
5.2.3. Private courier;
5.2.4. Electronic mail, as agreed upon by parties and approved by the court.
5.3. All subsequent pleadings must be priorly served and then filed with the court.

6.

JUDICIAL RELIEF ON THE ISSUE OF EXISTENCE, VALIDITY, OR


ENFORCEABILITY OF THE ARBITRATION AGREEMENT (PRELIMINARY
QUESTIONS).
6.1. JUDICIAL BEFORE THE COMENCEMENT OF ARBITRATION.
6.1.1. Service of verified petition upon the respondent.
6.1.2. Filing of verified petition with certification against forum shopping before
the RTC.
6.1.3. Respondent has 15 days from notice to take a comment/ opposition.
6.1.4. RTC must exercise judicial restraint conformably with the policy on
competence-competence principle.
6.1.5. Arbitral proceedings may nevertheless commenced and render an arbitral
award despite pendency of judicial relief.
6.1.6. RTC prima facie determination upholding the existence, validity or
validity of arbitration agreement is not subject to motion for
reconsideration, appeal or certiorari.
a. But same issue(s) may still be raised before the arbitral tribunal;
b. Or in a latter action to vacate or set aside the arbitral award.
6.2. JUDICIAL RELIEF AFTER THE COMENCEMENT OF ARBITRATION.
6.2.1. Within 30 days from notice, file a verified petition (with certification
against forum shopping) assailing the ruling of the arbitral tribunal on the
preliminary question upholding or declining its jurisdiction.
6.2.2. Respondent has 15 days from notice to take a comment/opposition.
6.2.3. Arbitration proceedings shall continue and render its award thereon.
6.2.4. No court may enjoin the arbitration proceedings pending the petition in
court.
6.3. RELIEFS FROM A COURT ACTION:
6.3.1. Motion for reconsideration;
6.3.2. But not subject to appeal;
6.3.3. A ruling by the court affirming the jurisdiction of the arbitral tribunal shall
not be subject to petition for certiorari (under Rule 65).
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6.3.4. A ruling by the court denying the jurisdiction of the arbitral tribunal may
be the subject of petition for certiorari (under Rule 65).
6.4. ABITRAL TRIBUNAL DEFERING TO RESOLVE THE ISSUE OF ITS
JURISDICTION.
6.4.1. A ruling by the arbitral tribunal deferring resolution on the issue of its
jurisdiction until final award is not subject to a motion for reconsideration,
appeal or a petition for certiorari.
6.5. WHEN TO MAKE REQUEST FOR ARBITRATION BEFORE THE RTC.
6.5.1. FORM
a. Motion
b. With notice of hearing
6.5.2. Should there be an existing arbitration agreement:
a. Before pre-trial, by either party;
b. After pre-trial, by way of agreement by the parties;
6.5.3. In case of submission agreement:
a. At any stage of the proceedings.
6.6. An order referring the dispute to arbitration shall be immediately executory and shall
not be subject to a motion for reconsideration, appeal or petition for certiorari.
6.7. An order denying the request to refer the dispute to arbitration shall not be subject to
an appeal (because it is interlocutory), but may be the subject of a motion for
reconsideration and/or a petition for certiorari.
7.

8.

MULTIPLE ACTIONS AND PARTIES.


7.1. Court shall not decline to refer some or all of the parties to arbitration for any of the
following reasons:
7.1.1. Not all of the disputes subject of the civil action may be referred to
arbitration;
7.1.2. Not all of the parties to the civil action are bound by the arbitration
agreement and referral to arbitration would result in multiplicity of suits;
7.1.3. The issues raised in the civil action could be speedily and efficiently
resolved in its entirety by the court rather than in arbitration;
7.1.4. Referral to arbitration does not appear to be the most prudent action; or
7.1.5. The stay of the action would prejudice the rights of the parties to the civil
action who are not bound by the arbitration agreement.
7.2. The court may, however, 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. (Rule
4.7.)
INTERIM MEASURES OF PROTECTION.
8.1. When to file petition before the RTC:
8.1.1. Before arbitration is commenced;
8.1.2. After arbitration is commenced, but before the constitution of the arbitral
tribunal;
8.1.3. After the constitution of the arbitral tribunal and at any time during arbitral
proceedings but, at this stage, only to the extent that the arbitral tribunal
has no power to act or is unable to act effectively.
8.2. GROUNDS FOR ITS ALLOWANCE (NON-EXCLUSIVE):
8.2.1. Need to prevent irreparable loss or injury;
8.2.2. Need to provide security for the performance of any obligation;
8.2.3. Need to produce or preserve evidence; or
8.2.4. Need to compel any other appropriate act or omission.
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8.3. TYPES OF INTERIM MEASURES THAT MAY BE GRANTED:


8.3.1. Preliminary injunction;
8.3.2. Preliminary attachment or garnishment;
8.3.3. Appointment of a receiver;
8.3.4. Detention, preservation, delivery or inspection of property; or,
8.3.5. Assistance in the enforcement of an interim measure of protection granted
by the arbitral tribunal, which the latter cannot enforce effectively.
8.4. INSTANCES WHERE PRIOR NOTICE IS DISPENSED:
8.4.1. Urgent need to either:
a. preserve property;
b. prevent the respondent from disposing of, or concealing, the property;
c. prevent the relief prayed for from becoming illusory because of prior
notice;
9.

APPOINTMENT OF ARBITRATOR.
9.1. Relief against court action:
9.1.1. If the court appoints an arbitrator, the order appointing an arbitrator shall
be immediately executory and shall not be the subject of a motion for
reconsideration, appeal or certiorari.
9.1.2. An order of the court denying the petition for appointment of an arbitrator
may be the subject of a motion for reconsideration, appeal or certiorari.
(Rule 6.9.)

10.
ASSISTANCE IN TAKING EVIDENCE;
10.1. Any party to an arbitration, whether domestic or foreign, may request the court to
provide assistance in taking evidence. (Rule 9.1.)
10.2.

TYPE OF ASSISTANCE:
10.2.1. To comply with a subpoena ad testificandum and/or subpoena duces
tecum;
10.2.2. To appear as a witness before an officer for the taking of his deposition
upon oral examination or by written interrogatories;
10.2.3. To allow the physical examination of the condition of persons, or the
inspection of things or premises and, when appropriate, to allow the
recording and/or documentation of condition of persons, things or
premises (i.e., photographs, video and other means of
recording/documentation);
10.2.4. To allow the examination and copying of documents; and
10.2.5. To perform any similar acts. (Rule 9.5)

10.3.

If the evidence sought is not privileged, and is material and relevant, the court
shall grant the assistance in taking evidence requested and shall order petitioner to
pay costs attendant to such assistance. (Rule 9.8)

10.4.

The order granting assistance in taking evidence shall be immediately executory


and not subject to reconsideration or appeal. (Rule 9.9)

10.5.

If the court declines to grant assistance in taking evidence, the petitioner may file
a motion for reconsideration or appeal. (Ibid.)

11. CONFIDENTIALITY/PROTECTIVE ORDERS.


11.1. CONFIDENTIAL INFORMATION OBTAINED THROUGH MEDIATION:
11.1.1. Information obtained through mediation shall be privileged and
confidential.
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11.1.2. A party, a mediator, or a non-party participant may refuse to disclose and


may prevent any other person from disclosing a mediation
communication.
11.1.3. Confidential Information shall not be subject to discovery and shall be
inadmissible in any adversarial proceeding, whether judicial or quasijudicial. However, evidence or information that is otherwise admissible or
subject to discovery does not become inadmissible or protected from
discovery solely by reason of its use in a mediation.
11.1.4. In such an adversarial proceeding, the following persons involved or
previously involved in a mediation may not be compelled to disclose
confidential information obtained during mediation:
a. the parties to the dispute;
b. the mediator or mediators;
c. the counsel for the parties;
d. the non-party participants;
e. any persons hired or engaged in connection with the mediation as
secretary, stenographer, clerk or assistant; and
f. any other person who obtains or possesses confidential information by
reason of his/her profession.
g. a mediator who is found to have failed to act impartially.
h. a mediator may not be called to testify to provide information gathered in
mediation. (Sec. 9)
12. WAIVER OF CONFIDENTIALITY.
12.1. may be waived in a record, or orally during a proceeding by the mediator and the
mediation parties;
12.2. may likewise be waived by a non-party participant if the information is provided
by such non-party participant;
13. EXCEPTIONS TO THE PRIVELEGE.
13.1. There is no privilege against disclosure under Section 9 if mediation
communication is:
13.1.1. in an agreement evidenced by a record authenticated by all parties to the
agreement;
13.1.2. available to the public or that is made during a session of a mediation
which is open, or is required by law to be open, to the public;
13.1.3. a threat or statement of a plan to inflict bodily injury or commit a crime of
violence;
13.1.4. internationally used to plan a crime, attempt to commit, or commit a
crime, or conceal an ongoing crime or criminal activity;
13.1.5. sought or offered to prove or disprove abuse, neglect, abandonment, or
exploitation in a proceeding in which a public agency is protecting the
interest of an individual protected by law; 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;
13.1.6. sought or offered to prove or disprove a claim or complaint of professional
misconduct or malpractice filed against mediator in a proceeding; or
13.1.7. sought or offered to prove or disprove a claim of complaint of professional
misconduct of malpractice filed against a party, nonparty participant, or
representative of a party based on conduct occurring during a mediation.
13.2. There is no privilege under Section 9 if a court or administrative agency, finds,
after a hearing in camera, that the party seeking discovery of the proponent of the
evidence has shown:
13.2.1. that the evidence is not otherwise available, that there is a need for the
evidence that substantially outweighs the interest in protecting
confidentiality, and the mediation communication is sought or offered in:
Page 11 of 25

a. a court proceeding involving a crime or felony; or


b. 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.
13.3.

A mediator may not be compelled to provide evidence of a mediation


communication or testify in such proceeding.

13.4.

If a mediation communication is not privileged under an exception in subsection


(a) or (b), only the portion of the communication necessary for the application of
the exception for nondisclosure may be admitted. The admission of particular
evidence for the limited purpose of an exception does not render that evidence, or
any other mediation communication, admissible for any other purpose. (Sec. 11)

14. A party, 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, on behalf of the source, 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.
(Rule 10.1.)
15. In resolving the petition or motion, the courts shall be guided by the following
principles applicable to all ADR proceedings:
15.1. Confidential information shall not be subject to discovery and shall be
inadmissible in any adversarial proceeding, whether judicial or quasi-judicial.
15.2. However, evidence or information that is otherwise admissible or subject to
discovery does not become inadmissible or protected from discovery solely by
reason of its use therein.
15.2.1. For mediation proceedings, the court shall be further guided by the
following principles:
a. Information obtained through mediation shall be privileged and
confidential.
b. A party, a mediator, or a nonparty participant may refuse to disclose and
may prevent any other person from disclosing a mediation
communication.
c. In such an adversarial proceeding, the following persons involved or
previously involved in a mediation may not be compelled to disclose
confidential information obtained during the mediation:
(1) parties to the dispute;
(2) mediator or mediators;
(3) counsel for the parties;
(4) nonparty participants;
(5) any persons hired or engaged in connection with the mediation as
secretary, stenographer; clerk or assistant; and
(6) any other person who obtains or possesses confidential information by
reason of his/ her profession.
d. The protection of the ADR Laws shall continue to apply even if a
mediator is found to have failed to act impartially.
e. A mediator may not be called to testify to provide information gathered
in mediation. A mediator who is wrongfully subpoenaed shall be
reimbursed the full cost of his attorney fees and related expenses. (Rule
10.8.)
16. CONFIRMATION, CORRECTION OR VACATION OF AWARD IN DOMESTIC
ARBITRATION.
16.1. PERIODS:

Page 12 of 25

16.1.1. Confirmation. - At any time after the lapse of thirty (30) days from receipt
by the petitioner of the arbitral award, he may petition the court to confirm
that award.
16.1.2. Correction/Modification. - Not later than thirty (30) days from receipt of
the arbitral award, a party may petition the court to correct/modify that
award.
16.1.3. Vacation. - Not later than thirty (30) days from receipt of the arbitral
award, a party may petition the court to vacate that award.
16.1.4. A petition to vacate the arbitral award may be filed, in opposition to a
petition to confirm the arbitral award, not later than thirty (30) days from
receipt of the award by the petitioner. A petition to vacate the arbitral
award filed beyond the reglementary period shall be dismissed.
16.1.5. A petition to confirm the arbitral award may be filed, in opposition to a
petition to vacate the arbitral award, at any time after the petition to vacate
such arbitral award is filed. 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.
16.1.6. 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.
16.1.7. 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. (Rule
11.2.)
16.2.

GROUNDS TO VACATE AN ARBITRAL AWARD.


16.2.1. Arbitral award was procured through corruption, fraud or other undue
means;
16.2.2. There was evident partiality or corruption in the arbitral tribunal or any of
its members;
16.2.3. 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;
16.2.4. One or more of the arbitrators was disqualified to act as such under the
law and willfully refrained from disclosing such disqualification; or
16.2.5. The arbitral tribunal exceeded its powers, or so imperfectly executed them,
such that a complete, final and definite award upon the subject matter
submitted to them was not made.
16.2.6. The award may also be vacated on any or all of the following grounds:
a. The arbitration agreement did not exist, or is invalid for any ground for
the revocation of a contract or is otherwise unenforceable; or
b. A party to arbitration is a minor or a person judicially declared to be
incompetent. (Rule 11.4)

16.3.

GROUNDS TO CORRECT/MODIFY AN ARBITRAL AWARD.


16.3.1. 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;
16.3.2. Where the arbitrators have awarded upon a matter not submitted to them,
not affecting the merits of the decision upon the matter submitted;
16.3.3. Where the arbitrators have omitted to resolve an issue submitted to them
for resolution; or
16.3.4. Where the award is imperfect in a matter of form not affecting the merits
of the controversy, and if it had been a commissioners report, the defect
could have been amended or disregarded by the Court. (Rule 11.4)
Page 13 of 25

16.4. In a petition to vacate an award or in petition to vacate an award in opposition to a


petition to confirm the award, 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, or in the appropriate case, order the
new hearing before a new arbitral tribunal, the members of which shall be chosen in
the manner provided in the arbitration agreement or submission, or the law. (Rule
11.9.)
17.

RECOGNITION AND ENFORCEMENT OR SETTING ASIDE OF AN AWARD


IN INTERNATIONAL COMMERCIAL ARBITRATION.

17.1.

Who may petition for recognition and enforcement or setting aside?


17.1.1. Any party to an international commercial arbitration in the Philippines.

17.2.

PERIOD TO FILE PETITION FOR RECOGNITION AND ENFORCEMENT.


17.2.1. Any time from receipt of award.
17.2.2. If, however, a timely petition to set aside an arbitral award is filed, 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. (Rule 12.2.)

17.3.

PERIOD TO FILE PETITION TO SET ASIDE AN ARBITRAL AWARD.


17.3.1. Within three (3) months from the time the petitioner receives a copy
thereof.
17.3.2. If a timely request is made with the arbitral tribunal for correction,
interpretation or additional award, the three (3) month period shall be
counted from the time the petitioner receives the resolution by the arbitral
tribunal of that request. (Ibid.)

17.4. GROUNDS TO SET ASIDE OR RESIST ENFORCEMENT OF AN ARBITRAL


AWARD.
17.4.1. A party to the arbitration agreement was under some incapacity, or the
said agreement is not valid under the law to which the parties have
subjected it or, failing any indication thereof, under Philippine law; or
17.4.2. 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; or
17.4.3. The award deals with a dispute not contemplated by or not falling within
the terms of the submission to arbitration, or contains decisions on matters
beyond the scope of the submission to arbitration; provided that, if the
decisions on matters submitted to arbitration can be separated from those
not so submitted, 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; or
17.4.4. 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 Philippine law from which the parties
cannot derogate, or, failing such agreement, was not in accordance with
Philippine law;
17.4.5. The court finds that:
a. The subject-matter of the dispute is not capable of settlement by
arbitration under the law of the Philippines; or
b. The recognition or enforcement of the award would be contrary to public
policy. (Rule 12.4.)
18.

RECOGNITION AND ENFORCEMENT OF A FOREIGN ARBITRAL AWARD.


Page 14 of 25

18.1.

WHO MAY FILE THE PETITION.


18.1.1. Any party to a foreign arbitration may petition the court to recognize and
enforce a foreign arbitral award. (Rule 13.1.)

18.2.

PERIOD.
18.2.1. Any time after receipt of a foreign arbitral award before the Regional Trial
Court. (Rule 13.2.)

18.3.

VENUE AT THE OPTION OF THE PETITIONER.


18.3.1. Where the assets to be attached or levied upon is located;
18.3.2. Where the act to be enjoined is being performed;
18.3.3. In the principal place of business in the Philippines of any of the parties;
18.3.4. If any of the parties is an individual, where any of those individuals
resides, or
18.3.5. In the National Capital Judicial Region. (Rule 13.3.)

19. GOVERNING LAW AND GROUNDS TO REFUSE RECOGNITION AND


ENFORCEMENT.
19.1. 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 the Special ADR Rules.
19.2. The court may, upon grounds of comity and reciprocity, 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 13.4.)
20. GROUNDS FOR REFUSAL TO RECOGNIZE AND ENFORCE FOREIGN
ARBITRAL AWARD.
20.1. A party to the arbitration agreement was under some incapacity; or the said
agreement is not valid under the law to which the parties have subjected it or, failing
any indication thereof, under the law of the country where the award was made; or
20.2. 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; or
20.3. The award deals with a dispute not contemplated by or not falling within the
terms of the submission to arbitration, or contains decisions on matters beyond the
scope of the submission to arbitration; provided that, if the decisions on matters
submitted to arbitration can be separated from those not so submitted, only that part
of the award which contains decisions on matters not submitted to arbitration may be
set aside; or
20.4. The composition of the arbitral tribunal or the arbitral procedure was not in
accordance with the agreement of the parties or, failing such agreement, was not in
accordance with the law of the country where arbitration took place; or
20.5. 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; or
20.6. The court finds that:
20.6.1. The subject-matter of the dispute is not capable of settlement or resolution
by arbitration under Philippine law;
20.6.2. The recognition or enforcement of the award would be contrary to public
policy.
21. DEPOSIT AND ENFORCEMENT OF MEDIATED SETTLEMENT AGREEMENTS.
21.1.

WHO DEPOSITS THE MEDIATED SETTLEMENT AGREEMENT?


21.1.1. Any party to a mediation that is not court-annexed may deposit with the
court the written settlement agreement, which resulted from that
mediation. (Rule 15.1.1)
Page 15 of 25

21.2.

WHEN IS THE MEDIATED SETTLEMENT AGREEMENT DEPOSITED?


21.2.1. At any time after an agreement is reached, the written settlement
agreement may be deposited. (15.2.)

21.3.

VENUE.
21.3.1. Written settlement agreement may be jointly deposited by the parties or by
one party with prior notice to the other party/ies with the Clerk of Court of
the RTC:
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, where any of those individuals
resides; or
c. In the National Capital Judicial Region. (Rule 15.3.)

21.4.

ENFORCEMENT OF MEDIATED SETTLEMENT AGREEMENT.


21.4.1. Any of the parties to a mediated settlement agreement, which was
deposited with the Clerk of Court of the RTC, may, upon breach thereof,
file a verified petition with the same court to enforce said agreement.
(Rule 15.5.)

22. MOTION FOR RECONSIDERATION, APPEAL AND CERTIORARI.


22.1. MOTION FOR RECONSIDERARION WITHIN 15 DAYS BEFORE THE RTC.
22.1.1. WHEN ALLOWED:
a. That the arbitration agreement is inexistent, invalid or unenforceable
pursuant to Rule 3.10 (B);
b. Upholding or reversing the arbitral tribunals jurisdiction pursuant to
Rule 3.19;
c. Denying a request to refer the parties to arbitration;
d. Granting or denying a party an interim measure of protection;
e. Denying a petition for the appointment of an arbitrator;
f. Refusing to grant assistance in taking evidence;
g. Enjoining or refusing to enjoin a person from divulging confidential
information;
h. Confirming, vacating or correcting a domestic arbitral award;
i. Suspending the proceedings to set aside an international commercial
arbitral award and referring the case back to the arbitral tribunal;
j. Setting aside an international commercial arbitral award;
k. Dismissing the petition to set aside an international commercial arbitral
award, even if the court does not recognize and/or enforce the same;
l. Recognizing and/or enforcing, or dismissing a petition to recognize
and/or enforce an international commercial arbitral award;
m. Declining a request for assistance in taking evidence;
n. Adjourning or deferring a ruling on a petition to set aside, recognize
and/or enforce an international commercial arbitral award;
o. Recognizing and/or enforcing a foreign arbitral award, or refusing
recognition and/or enforcement of the same; and
p. Granting or dismissing a petition to enforce a deposited mediated
settlement agreement. (Rule 19.1.)
22.1.2. WHEN NOT ALOWED.
a. No motion for reconsideration shall be allowed from the following
rulings of the RTC:
(1) A prima facie determination upholding the existence, validity or
enforceability of an arbitration agreement pursuant to Rule 3.1 (A);
(2) An order referring the dispute to arbitration;
(3) An order appointing an arbitrator;
Page 16 of 25

(4) Any ruling on the challenge to the appointment of an arbitrator;


(5) Any order resolving the issue of the termination of the mandate of an
arbitrator; and
(6) An order granting assistance in taking evidence. (Ibid.)
22.2.

No second motion for reconsideration is allowed.

23. APPEAL AND CERTIORARI.


23.1. No appeal or certiorari on the merits of an arbitral award - An agreement to refer a
dispute to arbitration shall mean that the arbitral award shall be final and binding.
Consequently, a party to an arbitration is precluded from filing an appeal or a petition
for certiorari questioning the merits of an arbitral award. (Rule 19.7.)
24. APPEAL FROM RTC TO COURT OF APPEALS.
24.1. MODE OF APPEAL Petition for review on certiorari under Rule 43
24.2.

PERIOD 15 days from notice of the final order, decision, or motion for
reconsideration.

24.3.

GROUNDS:
24.3.1. Granting or denying an interim measure of protection;
24.3.2. Denying a petition for appointment of an arbitrator;
24.3.3. Denying a petition for assistance in taking evidence;
24.3.4. Enjoining or refusing to enjoin a person from divulging confidential
information;
24.3.5. Confirming, vacating or correcting/modifying a domestic arbitral award;
24.3.6. Setting aside an international commercial arbitration award;
24.3.7. Dismissing the petition to set aside an international commercial arbitration
award even if the court does not decide to recognize or enforce such
award;
24.3.8. Recognizing and/or enforcing an international commercial arbitration
award;
24.3.9. Dismissing a petition to enforce an international commercial arbitration
award;
24.3.10.
Recognizing and/or enforcing a foreign arbitral award;
24.3.11.
Refusing recognition and/or enforcement of a foreign arbitral
award;
24.3.12.
Granting or dismissing a petition to enforce a deposited mediated
settlement agreement; and
24.3.13.
Reversing the ruling of the arbitral tribunal upholding its
jurisdiction. (Rule 19.12.)

25. SPECIAL CIVIL ACTION FOR CERTIORARI (Under RULE 65).


25.1. WHERE Court of Appeals
25.2. PERIOD - petition must be filed within 15 days from notice of the judgment,
order or resolution sought to be annulled or set aside.
25.3. No extension of time to file the petition shall be allowed. (Rule 19.28.)
25.4.

GROUNDS:
25.4.1. When the Regional Trial Court, in making a ruling under the Special ADR
Rules, has acted:
a. without jurisdiction;
b. in excess of its jurisdiction, or
c. with grave abuse of discretion amounting to lack or excess of
jurisdiction,

Page 17 of 25

and there is no appeal or any plain, speedy, and adequate remedy in the
ordinary course of law, a party may file a special civil action for certiorari
to annul or set aside a ruling of the Regional Trial Court.
25.5. A special civil action for certiorari may be filed against the following orders of
the court.
25.5.1. Holding that the arbitration agreement is inexistent, invalid or
unenforceable;
25.5.2. Reversing the arbitral tribunals preliminary determination upholding its
jurisdiction;
25.5.3. Denying the request to refer the dispute to arbitration;
25.5.4. Granting or refusing an interim relief;
25.5.5. Denying a petition for the appointment of an arbitrator;
25.5.6. Confirming, vacating or correcting a domestic arbitral award;
25.5.7. Suspending the proceedings to set aside an international commercial
arbitral award and referring the case back to the arbitral tribunal;
25.5.8. Allowing a party to enforce an international commercial arbitral award
pending appeal;
25.5.9. Adjourning or deferring a ruling on whether to set aside, recognize and or
enforce an international commercial arbitral award;
25.5.10.
Allowing a party to enforce a foreign arbitral award pending
appeal; and
25.5.11.
Denying a petition for assistance in taking evidence. (Rule 19.26.)
26. APPEAL BY CERTIORARI TO THE SUPREME COURT.
26.1. WHERE Supreme Court
26.2.

PERIOD 15 days from notice of judgment or final order or resolution appealed


from, or of the denial of the petitioner's motion for new trial or reconsideration
filed in due time after notice of the judgment.

26.3.

MODE Verified petition for review on certiorari (under Rule 45)


26.3.1. Purely questions of law (Rule 19.37.)
26.3.2. Discretionary appeal

26.4.

GROUNDS:
The following, while neither controlling nor fully measuring the court's
discretion, indicate the serious and compelling, and necessarily, restrictive
nature of the grounds that will warrant the exercise of the Supreme Courts
discretionary powers, when the Court of Appeals:
26.4.1. 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;
26.4.2. Erred in upholding a final order or decision despite the lack of jurisdiction
of the court that rendered such final order or decision;
26.4.3. Failed to apply any provision, principle, policy or rule contained in these
Special ADR Rules resulting in substantial prejudice to the aggrieved
party; and
26.4.4. Committed an error so egregious and harmful to a party as to amount to an
undeniable excess of jurisdiction.
The mere fact that the petitioner disagrees with the Court of Appeals
determination of questions of fact, of law or both questions of fact and law,
shall not warrant the exercise of the Supreme Courts discretionary power.
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.
Page 18 of 25

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, shall constitute
sufficient ground for the Supreme Court to dismiss outright the petition. (Rule
19.36)
VII. REMEDIES RE: DOMESTIC ARBITRAL AWARDS:
1. CONSTRUCTION INDUSTRY ARBITRATION COMMISSION (CIAC [E.O. No.
1008])
1.1.
Original and exclusive jurisdiction over:
1.1.1. disputes arising from, or connected with, contracts entered into by parties
involved in construction in the Philippines, whether the dispute arises:
a. before or after the completion of the contract, or
b. after the abandonment or breach thereof.
1.1.2. Violation of specifications for materials and workmanship;
1.1.3. Violation of the terms of agreement;
1.1.4. Interpretation and/or application of contractual time and delays;
1.1.5. Maintenance and defects;
1.1.6. Payment, default of employer or contractor and changes in contract cost.
1.2.
These disputes may involve government or private contracts.
1.3.
For the Board to acquire jurisdiction, the parties to a dispute must agree to submit
the same to voluntary arbitration.
1.4.
Jurisdiction of a court is determined by the law in force at the time of the
commencement of the action.
1.5.
Jurisdiction of CIAC is over the dispute, not the contract.
1.6.
As long as the parties agree to submit to voluntary arbitration, regardless of what
forum they may choose (ad hoc or institutional), their agreement will fall within
the jurisdiction of the CIAC, such that, even if they specifically choose another
forum, the parties will not be precluded from electing to submit their dispute
before the CIAC because the right has been vested upon each party by law, i.e.,
E.O. No 1008. (NIA vs. Court of Appeals, 318 SCRA 255).
1.7.
When a contract contains a clause for the submission of a future controversy to
arbitration, it is not necessary for the parties to enter into a submission agreement
before the claimant may invoke the jurisdiction of the CIAC.
1.8.

1.9.

ARBITRATOR(S).
1.8.1. A sole arbitrator:
a. Parties, by agreement, nominate him from the list of arbitrators
accredited by the CIAC for appointment and confirmation.
b. If the parties fail to agree as to the arbitrator, the CIAC taking into
consideration the complexities and intricacies of the dispute/s, has the
option to appoint a single arbitrator or an Arbitral Tribunal.
1.8.2.
Three arbitrators:
a. If the CIAC decides to appoint an Arbitral Tribunal, each party may
nominate one (1) arbitrator from the list of arbitrators accredited by
the CIAC for appointment and for confirmation.
b. The third arbitrator who is acceptable to both parties confirmed in
writing shall be appointed by the CIAC and shall preside over the
Tribunal. (Sec. 14)
As soon as a decision, order or award has become final and executory, the
Arbitral Tribunal or the single arbitrator with the occurrence of the CIAC shall
motu propio, or on motion of any interested party, issue a writ of execution
requiring any sheriff or other proper officer to execute said decision, order or
award. (Sec. 20)
Page 19 of 25

2.

COURT OF APPEALS.
1.1.
15 days from receipt of notice of the assailed final arbitral award, petition for
review under Rule 43, either on questions of fact, of law, or of fact and law.
Ground: errors of arbitral award (judgment). (Sec. 18.2, CIAC Revised Rules of
Procedure Governing Construction Arbitration)
1.2.
60 days from receipt of notice of the assailed final arbitral award, special civil
action for certiorari or petition for certiorari under Rule 65 (N.B.: Hierarchy of
Courts must be observed, as the remedy is an original and concurrent jurisdiction
with the Supreme Court). Ground: errors of jurisdiction.

2.

SUPREME COURT.
2.1.
15 days from receipt of notice of the assailed judgment or denial of motion for
reconsideration by the Court of Appeals, ordinary appeal of petition for review on
certiorari under Rule 45. Ground: errors of judgment.
2.2.
Concurrent jurisdiction with the Court of Appeals on Petition for Certiorari under
Rule 65. Hierarchy of courts must be observed. (Note: the petition for certiorari
[writ of certiorari] under Rule 65 is an original action).

3.

REMEDIES FROM INTERNATIONAL COMMERCIAL ARBITRATION.


3.1. Petition for confirmation, recognition and enforcement of foreign arbitral award
before the Regional Trial Court;
3.1.1. Attach the original or authenticated copy of the arbitral award or the
arbitration agreement.
3.1.2. The award or agreement must be made in any of the official languages
(English), if not the party shall supply a duly certified translation thereof
into any of such languages.
3.1.3. The country in which the foreign arbitration award was made must be a
party to the New York Convention.
3.1.4. When confirmed by RTC it shall be enforced in the same manner as final
and executory decisions of courts of law of the Philippines.
3.1.5. If the application for rejection or suspension of enforcement of an award
has been made, the RTC may, if it considers it proper, vacate its decision
and may also, on the application of the party claiming recognition or
enforcement of the award, order the party to provide appropriate security.

4.

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. The Court may, grounds of comity and reciprocity, recognize
and enforce a nonconvention award as a convention award. (Sec. 43)

5.

A foreign arbitral award when confirmed by a court of a foreign country, shall be


recognized and enforced as a foreign arbitral award and not a judgment of a foreign
court. (Sec. 44)

6.

A foreign arbitral award, when confirmed by the RTC, shall be enforced as a foreign
arbitral award and not as a judgment of a foreign court.

7.

A foreign arbitral award, when confirmed by the RTC, shall be enforced in the same
manner as final and executory decisions of courts of law of the Philippines.

VIII. CASES.
A. Tuna Processing, Inc., vs. Philippine Kingford, Inc., G.R. No. 185582, February
29, 2012.)
1. A foreign corporation not licensed to do business in the Philippines, but which
collects royalties from entities in the Philippines, have legal capacity to sue for the
Page 20 of 25

recognition and enforcement of foreign arbitral award in accordance with the


provisions of the Alternative Dispute Resolution Act of 2004 [R.A. No. 9285] .
2. When a party enters into a contract containing a foreign arbitration clause and, in
fact, submits itself to arbitration, it becomes bound by the contract, by the
arbitration and by the result of arbitration, conceding thereby the capacity of the
other party to enter into the contract, participate in the arbitration and cause the
implementation of the result. (Ibid.)
3. The New York Convention shall govern the recognition and enforcement of
arbitral awards covered by the said Convention. (Sec. 42, R.A. No. 9285)
4. Also, international commercial arbitration is governed by the Model Law on
International Commercial Arbitration (the Model Law) adopted by the United
Nations Commission on International Trade Law (UNCITRAL) on 21 June 1985.
5. Exclusive grounds for opposition in the application for recognition and
enforcement of arbitral award.
Article V
1. Recognition and enforcement of the award may be
refused, at the request of the party against whom it is invoked, only
if that party furnishes to the competent authority where the
recognition and enforcement is sought, proof that:
(a) The parties to the agreement referred to in article II
were, under the law applicable to them, under some incapacity, or
the said agreement is not valid under the law to which the parties
have subjected it or, failing any indication thereon, under the law
of the country where the award was made; or
(b) The party against whom the award is invoked was not
given proper notice of the appointment of the arbitrator or of the
arbitration proceedings or was otherwise unable to present his
case; or
(c) The award deals with a difference not contemplated by
or not falling within the terms of the submission to arbitration, or it
contains decisions on matters beyond the scope of the submission
to arbitration, provided that, if the decisions on matters submitted
to arbitration can be separated from those not so submitted, that
part of the award which contains decisions on matters submitted to
arbitration may be recognized and enforced; or
(d) The composition of the arbitral authority or the arbitral
procedure was not in accordance with the agreement of the parties,
or, failing such agreement, was not in accordance with the law of
the country where the arbitration took place; or
(e) The award has not yet become binding on the parties, or
has been set aside or suspended by a competent authority of the
country in which, or under the law of which, that award was made.
2. Recognition and enforcement of an arbitral award may
also be refused if the competent authority in the country where
recognition and enforcement is sought finds that:
(a) The subject matter of the difference is not capable of
settlement by arbitration under the law of that country; or
(b) The recognition or enforcement of the award would be
contrary to the public policy of that country. (New York
Convention)

Page 21 of 25

B. National Irrigation Administration (NIA), vs. Honorable court of Appeals [4th


Division], Construction Industry Arbitration Commission, and Hydro
Resources Contractors Corporation, G.R. No. 129169. November 17, 1999.
1. The Construction Industry Arbitration Commission (CIAC) has original and
exclusive jurisdiction over disputes arising from, or connected with contracts
entered into by parties involved in construction in the Philippines, whether the
dispute arises before or after the completion of the contract, or after the
abandonment or breach thereof.
2. Jurisdiction of a court is determined by the law in force at the time of the
commencement of the action.
3. The disputes may involve government or private contracts.
4. As long as the parties agree to submit to voluntary arbitration, regardless of what
forum they may choose, their agreement will fall within the jurisdiction of the
CIAC, such that, even if they specifically choose another forum, the parties will
not be precluded from electing to submit their dispute before the CIAC because
this right has been vested upon each party by law, i.e., E.O. No. 1008.
C. LM Power Engineering Corporation vs. Capitol Industrial Construction
Groups, Inc., G.R. No. 141833, March 26, 2003.
8.

Whenever there is an arbitration clause, there is no more need to file request


with the CIAC in order to vest it with jurisdiction to decide a construction
dispute.

9.

A prematurely filed complaint before the RTC without prior recourse to


arbitration, the proper procedure to enable the CIAC to decide on the dispute
is to request the stay or suspension of such an action, as provided under Sec.
7, R.A. No. 876 (the Arbitration Law).

Sec. 7. Stay of Civil Action. If any suit or proceeding


be brought upon an issue arising out of an agreement providing for
the arbitration thereof, the court in which such suit or proceeding is
pending, upon being satisfied that the issue involved in such suit or
proceeding is referable to arbitration, shall stay the action or
proceeding until an arbitration has been had in accordance with the
terms of the agreement: Provided, That the applicant for the stay is
not in default in proceeding with such arbitration.
D. JPlus Asia Development Corporation vs. Utility Assurance Corporation, G.R.
No. 199650, June 26, 2013.
1.

CIAC arbitral award is final and executory.

2.

A CIAC arbitral award need not be confirmed by the RTC to be executory as


provided under E.O. No. 1008.

3.

Domestic arbitral award, not falling under CIAC, shall be confirmed by way
of a petition for such an order within 30 days before the RTC. (Sec. 23 in
relation to Sec. 28, Arbitration Law [R.A. No. 876])

4.

The judgment in the confirmation of a domestic arbitral award is docketed as


if it were rendered in an action. (Ibid.).
Page 22 of 25

5.

The judgment in the confirmation of a domestic arbitral award so entered


have the same force and effect in all respects, as, and be subject to all
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. (Ibid.)

E. Koppel, Inc. vs. Makati Rotary Club Foundation, Inc., G.R. No. 198075,
September 4, 2013.
1.

Doctrine of Separability Under the doctrine of separability, an arbitration


agreement is considered as independent of the main contract. Being a
separate contract in itself, the arbitration agreement may thus be invoked
regardless of the possible nullity or invalidity of the main contract.

2.

Even the very party who repudiates or assails the validity of such contract
may invoke the arbitration clause.

3.

The operation of the arbitration clause is not at all defeated by the failure of
the party to file a formal "request" or application therefor. The filing of a
"request" pursuant to Section 24 of R.A. No. 9285 is not the sole means by
which an arbitration clause may be validly invoked in a pending suit.
Section 24 of R.A. No. 9285 reads:
Sec. 24. Referral to Arbitration. A court before which an
action is brought in a matter which is the subject matter of an
arbitration agreement shall, if at least one party so requests not
later that the pre-trial conference, or upon the request of both
parties thereafter, refer the parties to arbitration unless it finds that
the arbitration agreement is null and void, inoperative or incapable
of being performed.
The "request" referred to in the above provision is, in turn, implemented
by Rules 4.1 to 4.3 of A.M. No. 07-11-08-SC or the Special Rules of Court on
Alternative Dispute Resolution (Special ADR Rules):
RULE 4: REFERRAL TO ADR
Rule 4.1.Who makes the request. A party to a pending
action filed in violation of the arbitration agreement, whether
contained in an arbitration clause or in a submission agreement,
may request the court to refer the parties to arbitration in
accordance with such agreement.
Rule 4.2. When to make request. (A) Where the
arbitration agreement exists before the action is filed. The
request for referral shall be made not later than the pre-trial
conference. After the pre-trial conference, the court will only act
upon the request for referral if it is made with the agreement of all
parties to the case.
(B) Submission agreement. If there is no existing
arbitration agreement at the time the case is filed but the parties
subsequently enter into an arbitration agreement, they may request
the court to refer their dispute to arbitration at any time during the
proceedings.
Rule 4.3. Contents of request. The request for referral
shall be in the form of a motion, which shall state that the dispute
is covered by an arbitration agreement.
Apart from other submissions, the movant shall attach to
his motion an authentic copy of the arbitration agreement.
The request shall contain a notice of hearing addressed to
all parties specifying the date and time when it would be heard.
The party making the request shall serve it upon the respondent to
give him the opportunity to file a comment or opposition as
Page 23 of 25

provided in the immediately succeeding Rule before the hearing.


Attention must be paid, however, to the salient wordings of Rule
4.1. It reads: "[a] party to a pending action filed in violation of the
arbitration agreement . . . may request the court to refer the parties
to arbitration in accordance with such agreement."
In using the word "may" to qualify the act of filing a "request" under Section 24
of R.A. No. 9285, the Special ADR Rules clearly did not intend to limit the invocation of
an arbitration agreement in a pending suit solely via such "request." After all, noncompliance with an arbitration agreement is a valid defense to any offending suit and, as
such, may even be raised in an answer as provided in our ordinary rules of procedure.
4.

In this case, it is conceded that petitioner was not able to file a separate
"request" of arbitration before the MeTC. However, it is equally conceded
that the petitioner, as early as in its Answer with Counterclaim, had already
apprised the MeTC of the existence of the arbitration clause in the 2005
Lease Contract and, more significantly, of its desire to have the same
enforced in this case. This act of petitioner is enough valid invocation of his
right to arbitrate.

5.

The fact that the parties already underwent through JDR proceedings before
the RTC, will not make the subsequent conduct of arbitration between the
parties unnecessary or circuitous. The JDR system is substantially different
from arbitration proceedings.

6.

JUDICIAL DISPUTE RESOLUTION DISTINGUISHED FROM


ARBITRATION.
The JDR framework is based on the processes of mediation, conciliation
or early neutral evaluation which entails the submission of a dispute before a
"JDR judge" who shall merely "facilitate settlement" between the parties in
conflict or make a "non-binding evaluation or assessment of the chances of each
party's case." Thus in JDR, the JDR judge lacks the authority to render a
resolution of the dispute that is binding upon the parties in conflict.
In arbitration, on the other hand, the dispute is submitted to an arbitrator/s
a neutral third person or a group of thereof who shall have the authority to
render a resolution binding upon the parties.
7.

Mere submission of a dispute to JDR proceedings would not necessarily render


the subsequent conduct of arbitration a mere surplusage. The failure of the parties
in conflict to reach an amicable settlement before the JDR may, in fact, be
supplemented by their resort to arbitration where a binding resolution to the
dispute could finally be achieved.

8.

Neither would the summary nature of ejectment cases be a valid reason to


disregard the enforcement of the arbitration clause of the 2005 Lease Contract.
Notwithstanding the summary nature of ejectment cases, arbitration still remains
relevant as it aims not only to afford the parties an expeditious method of
resolving their dispute.
R.A. No. 9285
Sec. 24. Referral to Arbitration. A court before which an
action is brought in a matter which is the subject matter of an
arbitration agreement shall, if at least one party so requests not
later that the pre-trial conference, or upon the request of both
parties thereafter, refer the parties to arbitration unless it finds that
the arbitration agreement is null and void, inoperative or incapable
of being performed. [Emphasis supplied]
The violation by the MeTC of the clear directives under R.A. Nos. 876
and 9285 renders invalid all proceedings it undertook in the ejectment case after
Page 24 of 25

the filing by petitioner of its Answer with Counterclaim the point when the
petitioner and the respondent should have been referred to arbitration.
9.

Doctrine of COMPETENCE-COMPETENCE.
Rule 2.4. Policy implementing competence-competence
principle. - 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, including any objection with respect to the
existence or validity of the arbitration agreement. 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, either before
or after the arbitral tribunal is constituted, the court must exercise
judicial restraint and defer to the competence or jurisdiction of the
arbitral tribunal by allowing the arbitral tribunal the first
opportunity to rule upon such issues.
Where the court is asked to make a determination of
whether the arbitration agreement is null and void, inoperative or
incapable of being performed, under this policy of judicial
restraint, the court must make no more than a prima facie
determination of that issue.
Unless the court, pursuant to such prima facie
determination, concludes that the arbitration agreement is null and
void, inoperative or incapable of being performed, the court must
suspend the action before it and refer the parties to arbitration
pursuant to the arbitration agreement.

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