1.

ANG HIRAP FUCK 8======D~~~~

2. WHAT ARE THE BENEFITS/ADVANTAGES OF CHOOSING ARBITRATION? WHAT
ARE THE DISADVANTAGES?

ADVANTAGES (NICCF-FCACS) DISADVANTAGES

1. Neutrality 1. Cost of Arbitration
2. International Enforcement 2. Delay
3. Centralized Dispute Resolution. 3. Limits in arbitrator’s powers
Other reasons: 4. Multi-party/Bi-polar Arbitrations
4. Commercial Competence/Expertise 5. Non-signatories to arbitration
5. Finality of Decision agreement
6. Procedural Flexibility/Party Autonomy 6. Consolidation
7. Confidentiality 7. Joinder of issues involving 3rd parties
8. Additional Powers of arbitrators 8. Conflicting Awards
9. Continuity of Role 9. “Judicialization”
10. Arbitration involving state 10. Changes in arbitration

3. (A) WHEN IS ARBITRATION INTERNATIONAL? WHEN IS IT DOMESTIC?

- Art. 1 (3) of UNCITRAL Model Law:
“ An Arbitration is INTERNATIONAL if:
(a) The Parties to an agreement have, at the time of the conclusion of that
agreement, their places of business in different states.
(b) One of the following places is SITUATED OUTSIDE THE STATE in which
the parties have their places of business:
1. The place of arbitraton
2. Any place where
i. a substantial part of the OBLIGATIONS of the
COMMERCIAL RELATIONSHIP is to be performed or
ii. the place with which the SUBJECT-MATTER of the
DISPUTE is most closely connected
3. The parties have expressly agreed the the subject-matter of the
ARBITRATION AGREEMENT relates to more than one country.

- It is DOMESTIC if it does not fall under any of the enumerated circumstances which
makes an arbitration International. (?)

(B) WHAT “LAWS” GOVERN EACH UNDER ADR ACT ---???? Feel ko mali answer ko
dito.
International - UNCITRAL Model Law
Domestic- RA 876-Arbitration Law-as amended by RA 9285/ADR Act
4. AD HOC v. INSTITUTIONAL + PROS CONS OF EACH

AD HOC Arbitration is:

1. Conducted without the benefit of an appointing authority or a pre-existing arbitration
rules of an institution..
2. It is subject only to the parties’ arbitration agreement and applicable national
arbitration legislation
-Parties will sometimes select pre-existing rules designed fo ad hoc arbitration like
UNCITRAL Arbitration Rules
-Parties usually designate an appointing authority to select arbitrators if they cannot agree
themselves

INSTITUTIONAL Arbitration is:

1. Conducted pursuant to institutional arbitration rules properly incorporated by the
parties’ arbitration agreement
2. Almost always overseen by an appointing authority with responsibility for
constituting the arbitral tribunal, fixing their compensation, and other matters (like a
secretariat)

ADVANTAGES of AD HOC: It’s more DISADVANTAGES of AD HOC: Risk of

Flexible and Confidential, it can be shaped procedural breakdowns, uncertainty of
to meet the wishes of the parties and the having technical defects, largely
facts of the particular dispute. dependent of the cooperation
between/among the parties

ADVANTAGES OF INSTITUTIONAL:
-Reduced Risk of procedural breakdowns
and technical defects
-Tried and tested
-more sophisticated
-Ensures a more efficient/effective
processes due to provisions on
competence, separability, provisional
measures, disclosure
,impartiality,correction/changes to
awards, replacements, and costs
DISADVANTAGES OF INSTITUTIONAL:
-More expensive
-May lead to some delay due to the
additional processes
-May fail to take into consideration the
complexity of the case for example in
setting deadlines/time limits etc.
5.DEFINITION OF ARBITRATION AGREEMENT UNDER UNCITRAL MODEL LAW and
NY CONVENTION

NY CONVENTION- it is an agreement in writing under which the parties undertake to

submit to arbitration all or any difference which have arisen or which may arise between
them in respect of a defined legal relationship, whether contractual or not, concerning a
subject matter capable of settlement by arbitration.

(Might be asked) FORM: “in writing” shall include an arbitral clause in a contract or an arbitration
agreement, signed by the parties or contained in an exchange of letter or telegram

UNCITRAL MODEL LAW- “Arbitration Agreement” is an 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, whether contractual or not. An arbitration
agreement may be in the form of an arbitration clause in a contract or in a form of separate
agreement.

6. UNCITRAL MODEL LAW ARTICLE 7 –IN WRITING- TRUE OR FALSE

DEPENDS ON WHICH OPTION THE STATE CHOOSES (???)

Article 7 (2)- “The arbitration agreement shall be in writing. An agreement is in writing

if it is contained in (1) a document signed by the parties or (2) in an exchange of letters,
teletext, telegram, or other means of telecommunication which provide for a record of the
agreement, or (3) in an exchange of claims and defences in which the existence of an
agreement is alleged by one party and not denied by another. (4) 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.

HOWEVER, the Revised Model Law (2006) recognized 2 options for the state:
Option1- Adhere to the writing requirement, with the definition of “writing” extended to
include electronic communications of all types
Oprion2- Dispense altogether with the writing requirement (Hence, allowing oral
agreements)

7. CAN ANY AND ALL DISPUTES BE RESOLVED BY ARBITRATION? EXPLAIN.

No.(???? NOT SURE)
While the parties may agree to submit to arbitration all disputes arising from their defined
legal relationship, they may also agree to submit only certain disputes to arbitration.
Moreover, in the Philippines, there are matters that cannot be arbitrated as provided by law
such as:
1. Validity of marriage 3. Any ground for legal separation
2. Jurisdiction of courts 4. Civil Status of persons
 5. Criminal liability 8. And those disputes which by law
6. Future Legitime cannot be compromised.
7. Labor disputes covered by the
labor code

SAMPLEX 2017

I. 6pts.
WHAT IS ADR?
Any process or procedure used to resolve a dispute or controversy
Other than by adjudication of a presiding judge of a court or of an officer of a government
agency
In which a neutral 3rd party participates to assist in the resolution of the issues
Which includes arbitration, mediation, conciliation, early neutral evaluation, mini-trial or any
combination thereof

WHAT IS ARBITRATION?
- A voluntary dispute resolution process in which one or more arbitrators,
Appointed in accordance with the agreement of the parties or rules promulgated pursuant to
(the ADR act),
Resolve a dispute by rendering an award.

WHAT IS A COMMERCIAL ARBITRATION?

- An arbitration is commercial if it covers matters arising from all relationships of a
commercial nature, whether contractual or not.
- UNCITRAL Model Law: The term commercial should be given wide interpretation so as to cover matters arising
from all relationships of a commercial nature, whether contractual or not. (E.g. Any trade transaction for the supply or
exchange of goods or services; distribution agreement; commercial agency; leasing; engineering; carriage of goods or
passengers by land, air, sea, or railroad; other forms of business co-operation)

ELEMENTS OF INTERNATIONAL ARBITRATION AGREEMENT

1. Agreement to Arbitrate
2. Scope of Dispute Submitted to arbitration
3. Applicable Arbitration Rules
4. Arbitral Seat
5. Arbitrators Number, qualifications, and selection
6. Language
7. Choice of Law

-Agreement to arbitrate shall expressly state arbitration—mandatorily(“shall”) and not advisory (“finally”)
-Scope of Disputes submitted to arbitration—Category of disputes subject to arbitration
All or particular disputes
Submission agreeent-particular,only a single dispute that arose
Various formulations: “any” /”all” disputes arising under the agreement/in connection/in relation with this agreement
-Applicable Arbitration rules- Institutional-every arbit institutuion provides for their own; Ad hoc- usually the UNCITRAL Arbitration Rules
Civil Code of the Philippines-
RA 876- The Arbitration Law
NY Convention on Recognition and enforcement of Foreign Arbitral Awards
EO 1008- The Construction Industry Arbitration Law
RA 9285- ADR Act of 2004
UNCITRAL Model Law (1985) and Amendments adopted in 2006
Special ADR Rules
IRR of ADR Act
CASES

National Union Fire v. Stolt Nielsen- The Bill of lading clearly incorporates by reference
the terms o the Charter Party. Thus, this includes the arbitration clause even w/o a specific
stipulation to that effect. Insurer cannot avoid the binding effect of the Arbit clause because
by subrogation, it stepped into the shoes of the shipper.

BF Corp v. CA- A contract need not be contained in a single instrument. It may be

encompassed in several instruments even though not every instrument is signed by the
parties. It is sufficient that the unsigned instruments are clearly identified, refered to, and
made part of the signed instrument. The subscription of the principal agreement which
clearly incorporates other documents by reference, effectively covers the documents
incorporated by reference. Thus, the Arbit clause is binding.

Associated Bank v. CA- Under the Clearing House Rules & Reg of PCHC, mere
participation in effect amounst to a manifestation of agreement by the parties to arbitrates
and be bound by its rules. As such, a participating party may not invoke regular court’s
jurisdiction for disputes which fall under PCHC Rules w/o first going through Arbitration. It
cannot by pass arbitration on the basis of its averment that their 3 rd Party complaint is
inextricably linked to the original complaint.

Ormoc Sugar v. CA- Arbitration agreement must be written and signed by the parties.
Ormoc Sugar Planters Assoc. cannot demand the enforcement of the arbitration agreement
because its personality is separate and distinct from its members (also, not all of its
members ha a milling contract w/ the respondent). It cannot claim that it is suing as an
agent because as an agent you still have to sue in the name of the principal and not in your
own name. RA 876 allows the contract to be signed by an agent/representative but the
principal is still the one to invoke the Arbit clause.

Lanuza v. BF Corp- Directors of a corp may be compelled to submit to arbitration pursuant

to the contract entered into by the corporation they represent IF there are allegations of
badfaith/malice in their acts of representing the corp. This is to determine whether or not
there should be piercing of the corporate veil of fiction. When there is an allegation of
BF/Malice it becomes the duty of the court or tribunals if these persons should be treated as
one with the court. W/o trial, court/tribunals may not determine this. Moreover, if there is
an interpretation that would render effective an arbitration clause for the purpose of
avoiding litigation & expediting the resolution of the dispute, that interpretation should be
adopted.

Fruehauf Electronics v. TEAM

-What are the Remedies against an unfavorable arbitral award?
Right to appeal is merely a statutory privilege; it may not be invoked absent an enabling
law. Neither Arbitration law nor ADR Act allows a losing party to appeal from the arbitral
award. HOWEVER, an arbitral Award is not Absolute. Arbitration Law Sec. 24 and Model
Law Art. 34 provide for very limited exceptions (R19.10 of SPECIAL ADR RULES Which
lifts the grounds from Chapter 4 of ADR act which is applicable only to ICA—thus making it
also applicable to domestic arbitrations)--- see notes for the grounds

-What are available remedies from an RTC decision confirming, vacating, or

correcting an arbitral award?
An Arbitral Award is not appealable via Rule 43 because
1. No Statutory basis
2. Arbitral tribunals are not quasi-judicial bodies
3. Special ADR Rules specifically prohibits filing and appeal to question the merits of an
Arbitral award
Also NOT by Rule 65
1. The tribunal is not exercising judicial/quais-judical powers
2. Not even the expanded version of crtiorari because it is still limited to any
branch/instrumentality of the govt.
Also, Specaial ADR Rules forecloses any remedies outside of it.
SO: The ONLY remedy against a final domestic asrbitral award us to file a petition to
vacate/modify the award not later than 30 days from receipt.
-Upon RTC’s confirmation/vacation/modificationMR w/in 15 days from receipt of order
-Another option is to appeal the RTC Ruling instead through Appeal by RULE 45—so it’s not
an ordinary appeal, so notice of appeal is not needed and correctly denied in this case.