FOREIGN ARBITRAL AWARDS

SEC. 42. Application of the New York Convention. - The New York Convention

shall govern the recognition and enforcement of arbitral awards covered by the said

Convention.

The recognition and enforcement of such arbitral awards shall be filed with

regional trial court in accordance with the rules of procedure 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. If the award or

agreement is not made in any of the official languages, the party shall supply a duly

certified translation thereof into any of such languages.

The applicant shall establish that the country in which foreign arbitration

award was made is a party to the New York Convention.

If the application for rejection or suspension of enforcement of an award has

been made, the regional trial court 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.

NEW YORK CONVENTION

 It is the United Nations Convention on the recognition and Enforcement of

Foreign Arbitral Awards approved in 1958 and ratified by the Philippine

Senate under resolution No. 72. It provides for the recognition and enforcement

of foreign and non-domestic arbitral awards and obliges courts of Convention

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LAW AND JURISPRUDENCE ON ALTERNATIVE DISPUTE RESOLUTION by Gerardo Lara,

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 States to recognize arbitration agreements and arbitral awards as binding,

under conditions no more onerous than those under domestic arbitration.

APPLICATION OF THE NEW YORK CONVENTION

 It shall govern the recognition and enforcement of awards by said convention.

The recognition and enforcement of such arbitral awards shall be filed with the

Regional Trial Court in accordance with rules of procedure 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.

If the or agreement is not made in any of the official languages, the party shall

apply a duly certified translation thereof in any of such languages.

 The applicant shall establish that the country in which the foreign arbitration

award was made a party to the New York convention.

 If the applicant for rejection or suspension of the award has been made, the

Regional trial Court 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.

VACATE

 Vacate means “to render void; to “set aside. It is a fundamental percept that a

final decision cannot be amended or corrected except for clerical errors,

mistakes or misprisions. Because the court loses jurisdiction upon the finality

of its decision, except to order its decision within its lifetime. An award, being

merely a partial or final decision of an arbitrator in resolving the issue in

controversy is not a final decision of a court.

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SEC. 43. Recognition and Enforcement of Foreign Arbitral Awards Not Covered by

the New York Convention. - 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.

RECOGNITION

 It is a confirmation that an act done for another person was authorized. It is

the formal admission that a person, entity or thing has a particular status.

ENFORCEMENT

 The act or process of compelling compliance with a law, mandate or command.

Enforcement can be done extrajudicially or by means of legitimate law

enforcement agencies.

RECOGNITION AND ENFORCEMENT OF NON-NEW YORK CONVENTION

AWARDS

 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, on grounds of comity and

reciprocity, recognize and enforce a non-convention award as a convention

award.

COMITY VS JUDICIAL COMITY

 Comity is a rule of courtesy by which one court defers to the concomitant

jurisdiction of another, whereas judicial comity is not a rule of law, but one of

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 practical convenience and expediency based on the theory that a court which

first asserts jurisdiction will not be interfered with in continuance of its

assertion of another court unless it is undesirable that give way to the other.

RECIPROCITY

 Generally, a relationship between persons, states or countries whereby favors

or privileges granted by one are returned by the other. Thus, If State A certifies

engineers already certified by State B to work in State A, reciprocity exists

when State B similarly certifies engineers cerftified by State A. Reciprocity

does not involve a vested right but would exist without it.

SEC. 44. Foreign Arbitral Award Not Foreign Judgment. - 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.

A foreign arbitral award, when confirmed by the regional trial court, shall be enforced

as a foreign arbitral award and not as a judgment of a foreign court.

A foreign arbitral award, when confirmed by the regional trial court, shall be enforced

in the same manner as final and executory decisions of courts of law of the

Philippines.

EFFECT OF A FOREIGN ARBITRAL AWARD

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

be enforced as a foreign arbitral award and not as a judgment of a foreign court.

As such foreign arbitral award, it can be vacated by a regional trial court in

the Philippines. However, when a foreign arbitral award has been confirmed

by the regional trial court, the same shall be enforced as a final and executor

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LAW AND JURISPRUDENCE ON ALTERNATIVE DISPUTE RESOLUTION by Gerardo Lara,

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 decisions of courts of law in the Philippines. The effect of confirmation by a

regional trial court of a foreign arbitral award is to clothe them with the force

and effect of a final and executor court decision in the Philippines.

SEC. 45. Rejection of a Foreign Arbitral 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. Any other ground raised shall be disregarded by the regional trial court.

HOW FOREIGN ARBITRAL AWARD REJECTED

 A party to a foreign arbitral 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. Any of the

ground raised shall be disregarded by the regional trial court.

SEC. 46. Appeal from Court Decisions on Arbitral Awards. - A decision of the regional

trial court confirming, vacating, setting aside, 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.

The losing party who appeals from the judgment of the court confirming an arbitral

award shall be required by the appellant court to post counter bond 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.

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APPEAL

 A resort to a higher court for the purpose of obtaining a review of a lower court

decision and a reversal of the lower courts judgment or the granting of new

trial.

APPEAL FROM DECISIONS ON ARBITRAL AWARDS

 A decision of the Regional trial Court, confirming, vacating, setting aside or

modifying or correcting an arbitral award may be appealed to the Court of

Appelas in accordance with the rules of procedure to be promulgated by the

Supreme Court. However, the losing party who appeals from the judgment of

the court confirming an arbitral award shall be required by the appellate court

to post a 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

Supme Court.

SEC. 47. Venue and Jurisdiction. - Proceedings for recognition and enforcement of an

arbitration agreement or for vacation, setting aside, correction or modification of an

arbitral award, and any application with a court for arbitration assistance and

supervision shall be deemed as special proceedings and shall be filled with the

regional trial court (i) where arbitration proceedings are conducted; (ii) where the

asset to be attached or levied upon, or the act to be enjoined is located; (iii) where any

of the parties to the dispute resides or has his place of business; or (iv) in the National

Judicial Capital Region, at the option of the applicant.

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JURISDICTION VS VENUE

 Jurisdiction implies the power of a court to decide a case, while venue is the

place of action. Venue is procedural, not jurisdictional, hence may be waived.

Thus, the court may dismiss an action motu propio in case of lack of jurisdiction

over the subject, litis pendentia, res judicata, and prescription but not for

improper venue. Jurisdiction is conferred by law and not be mere policy of any

court or tribunal.

SEC. 48. Notice of Proceeding to Parties. - In a special proceeding for recognition and

enforcement of an arbitral award, the Court shall send notice to the parties at their

address of record in the arbitration, or if any party cannot be served notice at such

address, at such party's last known address. The notice shall be sent at least fifteen

(15) days before the date set for the initial hearing of the application.

NOTICE

 It means information actually received by the person to whom it is intended to

be imparted. Procedural process simply means that a person must be heard

before he is condemned. The requirement of due process is satisfied as long as

a party is given a reasonable opportunity to explain his side, even if he chooses

not to participate in the proceedings when his request for postponement is

denied.

NOTICE OF PROCEEDINGS TO PARTIES

 In special proceedings for recognition and enforcement of an arbitral award,

the Court shall send notice to the parties at their address of record in the

arbitration or if any party cannot be served notice at such address, at such

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LAW AND JURISPRUDENCE ON ALTERNATIVE DISPUTE RESOLUTION by Gerardo Lara,

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 party’s last known address. The notice shall be sent at least fifteen (15) days

before the date set for initial hearing of the application.

Alternative Dispute Resolution Act of 2004, Reynaldo b. Aralar, 2005 Edition

LAW AND JURISPRUDENCE ON ALTERNATIVE DISPUTE RESOLUTION by Gerardo Lara,

GRACE GAUDELYN BRILLO LARA and PATRICIA LAUREN D. ZUNIGA.