Workbook Fast-Track To Member (As of 11-28-16) PDF

PHILIPPINE INSTITUTE OF ARBITRATORS (PIARB)
WORKBOOK / COURSE MODULE1

(VERSION AS OF DECEMBER 2016)
FOR
COMMERCIAL ARBITRATION
(FAST TRACK TO MEMBER STATUS)
1 Prepared by and an intellectual property of the Philippine Institute of Arbitrators.

CONTENTS
Introduction……………………………………………………………………………. 3
How to use this workbook……………………………………………………………. 4
Recommended reference materials…………………………………………………... 5
Course Program……………………………………………………………………….. 6
Principles and Concepts………………………………………………………………… 9
Arbitration Agreement…………………………………………………………………. 16
Commencing an arbitration and constituting the Arbitral Tribunal…………………. 21
The Arbitral Tribunal: Jurisdiction, Duties and Powers………………………………. 26
Interim Measures of Protection………………………………………………………… 32
Arbitration Procedure and Preliminary Conference…………………………………… 37
Written Submissions, Evidence and Merits Hearings…………………………………. 43
Preparing the Award…………………………………………………………………….. 52
PIArb - Course Module for Fast-Track to Member 2

INTRODUCTION
The Philippine Institute of Arbitrators ("PIArb") is a non-stock, non-profit organization that

seeks to promote arbitration and other forms of ADR. Its mission is to be the voice for
private dispute resolution and envisions ADR becoming the primary means of resolving
conflict. Towards this mission and visions, PIArb's goals are (a) to be the private sector’s
leading advocate of private dispute resolution; (b) to be the benchmark provider of
awareness, education, and certification programs on private dispute resolution; (c) to
facilitate research in support of its role as advocate and educator; and (d) to serve as the
primary private sector forum on private dispute resolution policy and practice.
PIArb has 3 regular membership categories, namely: Associate (APIArb), Member (MPIArb)
and Fellow (FPIArb). The Associate grade is the normal entry grade.
PIArb offers this fast-track course to Membership grade where participants, upon passing the
proficiency exam of this course, will be qualified for admission as full Members (MPIArb).
Membership status is generally a prerequisite to election as a Fellow (FPIArb) of the
Institute.
The course includes, but is not limited to, lectures on arbitration-related topics. It provides
participants both a theoretical and practical training in the basic principles and procedures in
commercial arbitration. It supplement their basic knowledge of the principles, procedures
and best practices in arbitration.
The course does not require prior experience or training in arbitration, but the participants are
expected to be familiar with the pre-course materials that are provided to them in advance of
the course. Break-out sessions may be conducted by the speakers/facilitators to test the
participants’ familiarity with the materials and understanding of the principles of arbitration.
Those who complete the course will have the option of taking an examination for the purpose
of assessing their understanding of commercial arbitration which will give them the
opportunity to qualify for admission as Member of PIArb (allowing them to use the post-
nominal “MPIArb”).

HOW TO USE THIS WORKBOOK
This workbook is a pre-course material intended to introduce the participant to the various
topics to be discussed during the course. Where the workbook identifies certain issues but
does not provide the answers, it is intended to inform the participant of said issues and
encourage him/her to explore and make an independent analysis of these issues. The
workbook is not intended to be a comprehensive written version of the discussions during the
course. Neither is it intended to limit the discussion by the relevant speakers during the
sessions. The speakers, who are either senior officers of the Institute or who are experienced
arbitration practitioners may refer to this workbook in his/her discussion and may be guided
by the points presented in the workbook, but will not be limited by this workbook.
This workbook is primarily based on certain parts of the PIArb Commercial Arbitration
Handbook and makes various reference to the UNCITRAL Notes on Organizing Arbitral
Proceedings. The participants are, to the extent possible, encouraged not only to use this
workbook but also to read the PIArb Commercial Arbitration Handbook. For those who wish
to gain more knowledge about arbitration, this workbook also recommends other reference
materials.
We hope you will find this workbook useful and we look forward to welcoming you as
Members of PIArb.

RECOMMENDED REFERENCE MATERIALS
Main reference material
1. PIArb Commercial Arbitration Handbook, Anvil Publishing, 2015

2. UNCITRAL Notes on Organizing Arbitral Proceedings (1996) ("UNCITRAL Notes")
Other reference materials
1. E. Lizares, Arbitration in the Philippines and the Alternative Dispute Resolution Act
of 2004, R.A.. 9285 2004
2. Redfern and Hunter on International Arbitration, Fifth Edition, Student Version
Edited by Nigel Blackaby, Constantine Partasides, Alan Redfern, and Martin Hunter,
Oxford University Press, (2009)
3. Born, Gary, International Commercial Arbitration, Kluwer Law International (2014)
4. C. Parlade, International and Domestic Arbitration in the Philippines, Central Book
Supply, Inc. (2011)
Notable Laws and Rules
1. A.M. No. 07-11-08-SC - Special Rules of Court on Alternative Dispute Resolution

2. Department of Justice Circular No. 98, Series of 2009, otherwise known as the
Implementing Rules and Regulations of the ADR Act.
3. Executive Order No. 1008, otherwise known as the Construction Industry Arbitration
Law
4. Hong Kong International Arbitration Centre (HKIAC) Administered Arbitration
Rules (2013)
5. IBA Rules on Guidelines on Party Representation in International Arbitration (2013)
6. IBA Rules on Taking of Evidence on International Arbitration (revised in 2010)
7. IBA Rules on Guidelines for Drafting International Arbitration Clauses
8. International Bar Association (IBA) Rules on Guidelines on Conflicts of Interest in
International Arbitration (revised in 2014)
9. International Chamber of Commerce (ICC) Rules of Arbitration (2012)
10. Philippine Dispute Resolution Center, Inc. (PDRCI) Arbitration Rules (2015)
11. Republic Act No. 9285 or the Alternative Dispute Resolution Act of 2004
12. Republic Act No. 876, otherwise known as the Arbitration Law of 1953
13. Singapore International Arbitration Centre (SIAC) Arbitration Rules (2013)
14. The New York Convention on the Recognition and Enforcement of Foreign Arbitral
Awards
15. United Nations Commission on International Trade Law (UNCITRAL) Arbitration
Rules (1976, revised in 2013)
16. UNCITRAL Model Law on International Commercial Arbitration (1985, revised in
2006 and 2013)

COURSE PROGRAM (OVERVIEW)
DAY 1
Session 1 - Principles and Concepts

8:30 to 11:00 am (2.5 hours) / M. Valderrama
1.1. The ADR mechanism

1.2. Institutional and Ad hoc Arbitration
1.3. Legal framework
1.4. Arbitrating in the Philippines
1.5. Exercises
Session 2 - Arbitration Agreement

11:15-12:45 (1.5 hours) / J. Omila
2.1. Arbitration agreement

2.2. Law of the arbitration agreement
2.3. Place of arbitration
2.4. Number of Arbitrators
2.5. Language of arbitration
2.6. Principle of separability
2.7. Exercises
Session 3 - Commencing an arbitration and Constituting the Arbitral Tribunal

1:45-3:15 pm (1.5 hours) - J. Morallos
3.1. Commencement of arbitration

3.2. Dealing with a Request for Arbitration
3.3. Constitution of the arbitral tribunal
3.4. Nomination, appointment, and confirmation of arbitrators
3.5. Exercises
Session 4 - The Arbitral Tribunal: Jurisdiction, Duties and Powers

3:30-5:00 pm (1.5 hours) - Mario Valderrama
4.1. Jurisdiction of the arbitral tribunal

4.2. Duties and powers of the arbitral tribunal
4.3. Remedies
4.4. Exercises
DAY 2
Session 5 - Interim Measures of Protection

9:00 to 10:30 (1.5 hours) am - Maricef Valderrama
5.1. Interim Measures; In general

5.2. Interim measures in domestic and international arbitration
5.3. Enforcement of interim measures
5.4. Interim Measures; In particular

5.5. Exercises
Session 6 - Arbitration Procedure; General Principles; Preliminary Conference

10:45-12:15 (1.5 hours) / R. Ongkiko
6.1. Arbitration procedure

6.2. Preparing for preliminary conference
6.3. Preliminary conference proper
6.4. Matters arising from the preliminary conference
6.5. Exercises
Session 7 - Written Submissions, Evidence and Merits Hearing

1:15-2:45 pm (1.5 hours) / D. Calimon
7.1. Written submissions

7.2. Evidence
7.3. Factual and expert witnesses
7.4. Preparing for the hearings
7.5. Hearing proper
7.6. Post-hearing
7.7. Exercises
Session 8 - Preparing the Award

3:00-5:00 pm (2 hours) / E. Ceniza
8.1. Arbitral awards

8.2. Award on costs
8.3. Exercises
DAY 3
Examination

WORKBOOK
Session 1 - Principles and Concepts in Arbitration

Session 2 - Arbitration Agreement
Session 3 - Commencing an arbitration; Constitution of the Arbitral Tribunal
Session 4 - The Arbitral Tribunal: Jurisdiction, Duties and Powers
Session 5 - Interim Measures of Protection
Session 6 - Arbitration Procedure; General Principles; Preliminary Conference
Session 7 - Written Submissions and Evidence; Merits Hearings
Session 8 - Preparing the Award2
2
Issues relating to (a) Multi-Parties, Contracts or Arbitrations, Emergency Arbitrator and
Emergency Relief, Post-Award Proceedings, Role of Courts, Ethics in Arbitration and
Confidentiality and Privilege may be briefly discussed in this course, but they are taken in-
depth in a more advanced module.

SESSION 1
PRINCIPLES AND CONCEPTS

1.1. The ADR mechanism
Alternative Dispute Resolution
See Section 3 (a), Republic Act No. 9285 (ADR Act).
Processes which the parties voluntarily agree to adopt as the means of resolving their dispute.
Processes other than judicial determination in which an impartial and independent person
assists those in a dispute to resolve the issues between them.
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
Consider:
1. What are examples of ADR mechanisms?

2. Are dispute resolution processes required by law (such as court-annexed
mediations) forms of ADR?
Arbitration
See Section 3 (d), ADR Act.
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.
Consider:
1. What are the advantages and disadvantages of Arbitration?

2. What are the disadvantages of arbitration?
“Arbitration means 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
this act, resolve a dispute by rendering an award” (R.A. 9285 Sec. 3(d)).
There is no definition in the Convention and in the Model Law. What these defined is an
arbitration agreement.
“Each contracting state shall recognize an agreement in writing under which the parties
undertake to submit to arbitration all or any differences which have arisen or which may arise
between them in respect of a defined relationship, whether contractual or not, concerning a
subject matter capable of settlement by arbitration.” (New York Convention, Art. 2 (1)).
“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” (Model Law Art. 7 (1)).

Traditionally, in arbitration the resolution of the dispute or disputes is entrusted to one or
more persons and to them alone. Necessarily, this implies that the disputants should have the
opportunity to present their positions before an impartial tribunal. Burchell v Marsh, 58 U.S.
344, 15 L.Ed. 96 (1854).
“In its origins, the concept of arbitration is a simple one. Parties who are in dispute agree to
submit their disagreement to a person whose expertise or judgment they trust. They each put
their respective cases to this person – this private individual, this arbitrator who listens,
considers the facts and the arguments, and then makes a decision. This decision is final and
binding on the parties; and it is binding because the parties have agreed that it should be,
rather than because of the coercive action of any state.” (Redfern and Hunter on International
Commercial Arbitration, Fifth Edition, on pages 1 – 2).
Arbitration is a device whereby the settlement of a question, which is of interest for two or
more persons, is entrusted to one or more other persons – the arbitrator or arbitrators - who
derive their powers from a private agreement, not from the authorities of a State, and who are
to proceed and decide the case on the basis of such an agreement (Fouchard, Gaillard,
Goldman on International Commercial Arbitration , par. 7 citing several authors).
Constituent Elements of an Arbitration: (a) It is contractual; and (b) It is judicial (Thomas E.

Carbonneu: Cases and Materials on The Law and Practice of Arbitration, Revised Third
Edition)
Arbitration is contractual
Tribunal’s power arises from contract.

Distinguishes arbitration from litigation and arbitrations based on law.
Arbitration is judicial
Decides disputes like a judge or collective judges, as the case may be.
Implies the use of an adjudicative procedure which afford each party an opportunity
to present its case.
Distinguishes arbitration from mediation and other ADR forms.
Other Characteristics of an Arbitration:
Case Specific and Parties Specific - Binding only on parties that are bound by the
arbitration agreement.
Private Dispute Resolution Process - Operates extrajudicially and with minimal

interference from the court. Award has to be integrated into the legal/judicial system.
Tribunal an Instrumentality of the Parties - In arbitration the parties by contract create

their own tribunal (see Model Law provisions). They appoint, directly or indirectly,
their “judges”; craft the procedure; agree on several categories of choice. As creators
they own the tribunal; as owners and creators they can shape the tribunal to what they
want it to be. As owners and creators they pay the expenses of the tribunal that they
created. The arbitrators are akin to temporary employees whose job description is to

resolve the dispute between the parties. Certiorari jurisdiction of courts does not
apply.
Evidentiary - “Tribunal cannot use its expertise in deciding the dispute”. “Secret
evidence”. Judicial notice of laws? No expert witness or inadequate expert testimony.
What if tribunal believes that the basis of the parties’ presentations were wrong?
Mandatory Procedure - Effect of entering into an arbitration agreement. Role of party

autonomy.
Principle of finality of award is contractual - Agreement re binding effect of award.

No appeal on the merits. Rule not applicable to grounds to challenge awards.
Award is part of agreement - Award is final and binding in the same way that a
contractual stipulation is final and binding. Validity and enforceability of award
follow the same rules as applicable to contractual stipulations.
Arbitral tribunal has no imperium - Tribunal and parties have to rely on the courts.
Commercial Arbitration
See Article 1.6 (C)(4), Rule 2, Implementing Rules (IRR) of the ADR Act of 2004.
Commercial arbitration covers matters arising from all relationships of a commercial nature,
whether contractual or not.
Any trade transaction for the supply or exchange of goods or services

Distribution agreements
Commercial representation or agency
Factoring
Leasing
Consulting
Engineering
Licensing
Investment
Financing
Banking
Insurance
Joint venture other forms of industrial or business cooperation
Carriage of goods or passengers by air, sea, rail or road
Consider:
1. Are construction disputes considered "commercial" disputes?
1.2. Institutional and Ad hoc Arbitration
Institutional and Ad Hoc Arbitration

Institutional arbitrations are arbitrations administered by an organization or regular arbitral
center, usually in accordance with its own rules of arbitration.
Ad hoc arbitrations are arbitrations not formally administered by any established arbitral
agency; instead the parties opt to administer the arbitration themselves, e.g. craft their own
procedures for a given arbitration.
Consider:
1. What are arbitral institutions?

2. What roles do they play in arbitration proceedings?
3. What is the consequence of failing to designate an arbitral institution?
Advantages of institutional Arbitrations
The advantages of institutional arbitrations include:
Ease of incorporating by reference the institution’s rules in a contract.

Rules of arbitral institutions are generally drafted by professionals who are expert and
have extensive experience in arbitration.
Arbitral institutions provide valuable assistance in the constitution of the arbitral
tribunal because of the pool of arbitrators within its network.
They assist in engaging the arbitrator’s services and the parties are generally spared
the burden of having to negotiate their fees.
Arbitral institutions further have professional staff available to guide disputants
through the arbitration process.
Arbitral institutions also receive increasingly favorable recognition by national courts.
(See G. Aksen, “Ad hoc versus Institutional Arbitration, 2 ICC ICArb. Bull. 8-14
(1991).
Advantages of Ad Hoc Arbitrations
It does not necessarily follow that institutional arbitration is always preferable. Ad Hoc
arbitration can also be advantageous as follows:
Flexibility, because an ad hoc procedure can be “shaped to meet the wishes of the
parties and the facts of the particular dispute.”
Cost, to the extent that parties avoid administration fees that follow from institutional
arbitration.
Speed, because arbitral institutions can sometimes have cumbersome internal
procedures and time periods.
However, the success of ad hoc arbitrations depend, in large part, on the competence of the
arbitral tribunal and the cooperation of the parties (See G. Aksen, “Ad hoc versus
Institutional Arbitration, 2 ICC ICArb. Bull. 8-14 (1991).
1.3. Philippine Legal framework
Philippine Arbitration Laws

The ADR Act (Republic Act No. 9285 or the Alternative Dispute Resolution Act of 2004), is
the comprehensive law governing commercial arbitration in the Philippines.
The ADR Act incorporated by reference:
Certain provisions of Republic Act No. 876, otherwise known as the Arbitration Law
of 1953 ("Domestic Arbitration Law"), for domestic arbitrations;
The United Nations Commission on International Trade Law ("UNCITRAL") Model
Law ("Model Law") for international commercial arbitrations;
The New York Convention; and
Executive Order No. 1008, known as the Construction Industry Arbitration Law
("Construction Arbitration Law"), for the arbitration of construction disputes.
The ADR Act adopts the principle of party autonomy and makes it a state policy to encourage
and actively promote alternative dispute resolution.
Other relevant Philippine arbitration rules are:
Department of Justice Circular No. 98, Series of 2009, otherwise known as the
Implementing Rules and Regulations of the ADR Act; and
Special Rules of Court on Alternative Dispute Resolution ("ADR Rules").
Other arbitration rules that parties in arbitrations in the Philippines may adopt are:
The UNCITRAL Arbitration Rules

Various guidelines of the International Bar Association ("IBA"), e.g. Rules of Ethics
for International Arbitrators, Rules on the Taking of Evidence in International
Arbitration, Guidelines on Conflicts of Interest in International Arbitration, and
Guidelines on Party Representation.
Laws governing the arbitral procedure and arbitration rules that parties may agree upon
typically allow the arbitral tribunal broad discretion and flexibility in the conduct of arbitral
proceedings. This is useful in that it enables the arbitral tribunal to take decisions on the
organization of proceedings that take into account the circumstances of the case, the
expectations of the parties and of the members of the arbitral tribunal, and the need for a just
and cost-efficient resolution of the dispute. A prominent example of such rules are the
UNCITRAL Arbitration Rules, which provide in article 15(1): “Subject to these Rules, the
arbitral tribunal may conduct the arbitration in such manner as it considers appropriate,
provided that the parties are treated with equality and that at any stage of the proceedings
each party is given a full opportunity of presenting his case.” (UNCITRAL Notes, p. 1)
Consider:
1. What is the UNCITRAL Model Law?

2. What is the UNCITRAL Arbitration Rules?
3. Is arbitration practice in the Philippines the same as in other countries?
Foreign and Local Arbitrations; International and Domestic Arbitrations

Foreign arbitrations – arbitrations where the jurisdictional seat is a country other than the
Philippines. Applicable law of arbitration is the arbitration law of the seat. If a foreign award
were being enforced in the Philippines, the applicable law is the New York Convention of
1958.
Local arbitrations - arbitrations where Philippines is the jurisdictional seat
a. Domestic – Domestic arbitration is that which does not fall within the definition of
international arbitration. Broadly speaking, these are arbitrations without foreign
element. Applicable law is R.A. 876 and Civil Code Title XIV as amended/modified
by R.A. 9285.
b. International – with foreign element. Governing law is the UNCITRAL Model Law
(1985) as modified by R.A. 9285. International arbitration is one where:
The parties to an arbitration agreement have, at the time of the conclusion of such
agreement, their places of business in different States (countries); or
Where one of the following places is situated outside the State (country) in which
the parties have their places of business; (i) the place of arbitration if determined
in, or pursuant to, the arbitration agreement; (ii) any place where a substantial part
of the obligations of the commercial relationship is to be performed or the place
with which the subject matter of the dispute is most closely connected; or (iii) the
parties have expressly agreed that the subject matter of the arbitration agreement
relates to more than one country.
Consider:
1. What are examples of domestic arbitration?

2. What are the implications if the arbitration is domestic?
3. What law applies to international arbitrations in the Philippines?
1.4. Arbitrating in the Philippines
Disputes that cannot be subject of arbitration under Philippine law?
Labor disputes
Civil status of persons
Validity of marriage
Ground for legal separation
Jurisdiction of courts
Future legitime
Criminal liability
Those which by law cannot be compromised
Disputes referred to court-annexed mediation.
Consider:
1. Can foreigners act as arbitrators in arbitrations in the Philippines?

2. Can foreign counsel represent parties in arbitrations in the Philippines?

3. Can non-lawyers represent parties in arbitrations in the Philippines?
Some problems with our arbitration law:
Domestic Arbitration Law Very Difficult to Understand

Only In the Philippines Provisions
Our arbitration law is in several enactments, namely R.A. 9285, R.A. 876, some civil
code provisions, the UNCITRAL Model Law 1985, the New York Convention, the
SC’s Special Rules, the DOJ’s IRR, and a several others. In certain instances they do
not provide the same rules.
Conflicting Provisions:
1.5. Exercises
(a) What are the relevant Philippine legislations on arbitration?
(b) Distinguish these laws from each other, in terms of purpose and coverage?
(c) Would it be more beneficial to have a single arbitration law governing the different types
of arbitration? What are the pros and cons?
Note: You will be observed as to how you participate in the discussions.

SESSION 2
ARBITRATION AGREEMENT

2.1. Arbitration agreement
Definition
An arbitration agreement is an agreement to submit to arbitration all or certain disputes which

have arisen or which may arise between the parties 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 the form of a separate agreement. (UNCITRAL Model Law, Article
7)
Consider:
1. Are arbitration agreements that provide for arbitration or litigation valid?

2. What is the effect of an arbitration agreement?
3. What does “arising out of or in connection with” in an arbitration agreement
mean?
Arbitration Clause and Submission Agreement?
An arbitration clause is an arbitration agreement incorporated as a clause in a contract. It is an

agreement to submit future disputes to arbitration. An arbitration agreement referring future
disputes to arbitration may also be contained in an agreement separate from the main
contract.
An arbitration agreement may also be in the form of a "submission agreement", which is

entered into for the purpose of submitting existing disputes to arbitration. A submission
agreement is an agreement separate from the main contract and is entered into after disputes
have arisen from or in relation to that contract.
Requirements for a valid arbitration agreement
An arbitration agreement is a contract and as such must be valid as a contract under the law to
which the parties subject it.
There must be a clear intent to arbitrate, it must be in writing and the subject matter of the
arbitration must be capable of being settled through arbitration.
There is no prescribed form, but it is generally required that the arbitration agreement be in
writing.
Consider:
1. Are arbitration agreements agreed through exchange of emails valid?
2.2. Law of the arbitration
The law governing the arbitration
The proper law governing the contract (lex mercatoria or conflicts of law, or the system of
law agreed upon by the parties or as determined by the arbitral tribunal, as the case may be)

determines the substantive rights and obligations of the parties in the contract that will be
applied by the arbitral tribunal in rendering the award. The law governing the arbitration (lex
arbitri or curial law, as the case may be) determines the procedure that shall be used in the
arbitration proceedings or in enforcing the award, as the case may be, including the
relationship between the arbitral tribunal and the national courts.
Consider:
1. If the arbitration agreement does not provide for a governing law, how is
the law governing the arbitration determined?
2.3. Place of arbitration
Place of arbitration and venue of hearings
The place of arbitration is not the same as the venue of arbitration. When a particular city or
country is designated as the place of arbitration, it means that the arbitration laws of that city
or country shall govern the arbitration proceedings and the courts thereof shall have
supervisory powers over the arbitration.
Place of arbitration is also referred to as the juridical place or the seat of the arbitration. If the
arbitration agreement, however, indicates both a "seat" and a "place" of arbitration, the
designated “place” would likely be construed as the venue of hearings.
Arbitration rules usually allow the parties to agree on the place of arbitration, subject to the
requirement of some arbitral institutions that arbitrations under their rules be conducted at a
particular place, usually the location of the institution. If the place has not been so agreed
upon, the rules governing the arbitration typically provide that it is in the power of the arbitral
tribunal or the institution administering the arbitration to determine the place. If the arbitral
tribunal is to make that determination, it may wish to hear the views of the parties before
doing so. (UNCITRAL Notes, p. 10)
Various factual and legal factors influence the choice of the place of arbitration, and their
relative importance varies from case to case. Among the more prominent factors are: (a)
suitability of the law on arbitral procedure of the place of arbitration; (b) whether there is a
multilateral or bilateral treaty on enforcement of arbitral awards between the State where the
arbitration takes place and the State or States where the award may have to be enforced; (c)
convenience of the parties and the arbitrators, including the travel distances; (d) availability
and cost of support services needed; and (e) location of the subject-matter in dispute and
proximity of evidence. (UNCITRAL Notes, p. 10)
Many sets of arbitration rules and laws on arbitral procedure expressly allow the arbitral
tribunal to hold meetings elsewhere than at the place of arbitration. For example, under the
UNCITRAL Model Law on International Commercial Arbitration “the arbitral tribunal may,
unless otherwise agreed by the parties, meet at any place it considers appropriate for
consultation among its members, for hearing witnesses, experts or the parties, or for
inspection of goods, other property or documents” (article 20(2)). The purpose of this
discretion is to permit arbitral proceedings to be carried out in a manner that is most efficient
and economical. (UNCITRAL Notes, p. 11)

Consider:
1. What does venue of arbitration mean?

2. How will the place of arbitration be determined if parties fail to provide
for it?
3. How is the place of arbitration referenced in the arbitration agreement?
2.4. Number of Arbitrators
Default number of arbitrators
The parties are free to determine the number of arbitrators, failing such determination, the
number of arbitrators shall be three.
Consider:
1. What are the advantages of having 1 or 3 arbitrators?
Appointment of arbitrators
The parties are free to agree on a procedure of appointing the arbitrator or arbitrators.
Failing such agreement, in an arbitration with three arbitrators, each party shall appoint one
arbitrator, and the two arbitrators shall appoint the third arbitrator
If a party fails to appoint the arbitrator, or if the two arbitrators fail to agree on the third
arbitrator, the appointment shall be made, upon request of a party, by the appointing authority
designated by the parties or authorized under the relevant law.
In an arbitration with sole arbitrator, if the parties are unable to agree on the arbitrator, he
shall be appointed, upon request of a party, by the appointing authority designated by the
parties or authorized under the relevant law.
2.5. Language of arbitration
Purpose
An agreement as to the language of arbitration is particularly helpful in cases where the

parties to the agreement do not speak the same language.
The language of arbitration shall be the official language of the arbitration proceedings. All
written and oral communications, as well as with respect to any evidence submitted shall be
made or translated in the language agreed upon in the arbitration agreement.
Many rules and laws on arbitral procedure empower the arbitral tribunal to determine the
language or languages to be used in the proceedings, if the parties have not reached an
agreement thereon. Arbitral tribunals should consider the possible need for translation of
documents, in full or in part or for interpretation of oral presentations, and whether any or all
of the costs are to be paid directly by a party or whether they will be paid out of the deposits

and apportioned between the parties along with the other arbitration costs. (UNCITRAL
Notes, pp. 9-10)
2.6. Principle of Separability
Separability of the arbitration agreement
An arbitration clause shall be treated as an agreement independent of the other terms of the
contract of which it forms part.
Consider:
1. What is the significance of the principle of "separability" in practice?
2.7. Exercises
(a) What are the essential elements of an arbitration agreement?

(b) Explain the purposes of each element.

SESSION 3
COMMENCING AN ARBITRATION AND
CONSTITUTING THE ARBITRAL TRIBUNAL

3.1. Commencement of arbitration
Procedure for commencing an arbitration
Arbitration is generally commenced by sending a request for arbitration to the other party
(see Appendix 1, PIArb Commercial Arbitration Handbook).
Institutional arbitration is commenced in accordance with the rules of the institution agreed
upon by the parties.
Ad hoc arbitration is commenced in accordance with the applicable rules, e.g. if the parties
agreed that the arbitration shall be governed by the UNCITRAL Arbitration Rules.
The Request for Arbitration, as a rule, names the claimant's nominated arbitrator. In case the
claimant is not ready to name its nominated arbitrator, it may do so within a reasonable time
after the transmittal of the Request for Arbitration.
Date arbitration is deemed commenced
Unless otherwise agreed upon by the parties, or provided by the applicable arbitration rules,
the arbitral proceeding is generally deemed commenced on the date on which a request for,
demand or notice of arbitration is received by the respondent.
Where there is no prior agreement to submit future disputes to arbitration, the proceedings is
deemed commenced upon agreement by the other party to submit the dispute to arbitration.
Consider:
1. Is there a time limit for commencing arbitration?
Communication with parties and the arbitral tribunal
Any notice, communication or proposal, shall be in writing.
As a rule, unless and until the parties and/or the arbitral tribunal have agreed that
communications may be transmitted by electronic means, any such communication may be
delivered or sent by registered postal, courier service or by hand.
Once the arbitral tribunal is constituted, all communications to the arbitral tribunal should be
copied to the other party because ex parte communications with the arbitral tribunal are
generally disallowed.
In institutional arbitrations, the arbitral institution should always be copied in the

communications among the parties and arbitral tribunal.
To the extent the question how documents and other written communications should be
routed among the parties and the arbitrators is not settled by the agreed rules, or, if an
institution administers the case, by the practices of the institution, it is useful for the arbitral
tribunal to clarify the question suitably early so as to avoid misunderstandings and delays.
(UNCITRAL Notes, p. 14)

Telefax and other electronic means of sending documents
UNCITRAL Notes, pp. 14-15, provide in part:
Telefax, which offers many advantages over traditional means of communication, is widely
used in arbitral proceedings. Nevertheless, should it be thought that, because of the
characteristics of the equipment used, it would be preferable not to rely only on a
telefacsimile of a document, special arrangements may be considered, such as that a
particular piece of written evidence should be mailed or otherwise physically delivered, or
that certain telefax messages should be confirmed by mailing or otherwise delivering
documents whose facsimile were transmitted by electronic means. When a document should
not be sent by telefax, it may, however, be appropriate, in order to avoid an unnecessarily
rigid procedure, for the arbitral tribunal to retain discretion to accept an advance copy of a
document by telefax for the purposes of meeting a deadline, provided that the document itself
is received within a reasonable time thereafter.
It might be agreed that documents, or some of them, will be exchanged not only in
paper-based form, but in addition also in an electronic form other than telefax (e.g. as
electronic mail, or on a magnetic or optical disk), or only in electronic form. Since the use of
electronic means depends on the aptitude of the persons involved and the availability of
equipment and computer programs, agreement is necessary for such means to be used. If both
paper-based and electronic means are to be used, it is advisable to decide which one is
controlling and, if there is a time-limit for submitting a document, which act constitutes
submission.
Consider:
1. Can the tribunal direct that all communications be through electronic

mail?
Request for Arbitration
The Request for Arbitration should always comply with the requirements of the arbitration
rules agreed upon by the parties.
Generally, it should contain:
A demand that the dispute be referred to arbitration

Names, addresses, telephone and facsimile numbers and email addresses of the parties
to the arbitration
A reference to the arbitration clause or the separate arbitration agreement that is
invoked
A brief statement describing the nature and circumstances of the dispute, specifying
the relief claimed and where possible on initial quantification of the claim amount
A statement of any matters which the parties have previously agreed as to the conduct
of the arbitration or with respect to which the claimant wishes to make a proposal

It is advisable that, together with the Request for Arbitration, documents showing the basis of
claimant's claim be submitted in order to provide the arbitrator(s) sufficient information
pertinent to the claim.
Consider:
1. To whom should the Request for Arbitration be sent?

2. When should a party consider arbitrator candidates?
3. Do the rules on multiplicity of suits and splitting of causes of action apply?
3.2.Dealing with a Request for Arbitration
Response to a Request for Arbitration
Upon receipt of a Request for Arbitration:
Review and prepare its response

Consider if dispute is covered by the arbitration agreement
Consider if there is basis to challenge the arbitrator nominated
Select nominee arbitrator
Actions of Arbitral Institution
Upon receipt of a Request for Arbitration:
Initial determination on whether the dispute is covered by an arbitration agreement

Notice to the other party of the filing of the Request for Arbitration and directs the
other party to submit a response
Commence process of constituting the arbitral tribunal by asking the responded to
comment on whether the nominated arbitrator should be appointed
Assess and collect arbitration fees against the claimant.
In ad hoc arbitration
Request for Arbitration should be sent directly and only to the respondent.
The Request for Arbitration should contain a demand not just for the parties to arbitrate their
disputes but also for the respondent to nominate its arbitrator so that the parties can proceed
to constitute the arbitral tribunal.
Because of the absence of an arbitral institution that normally prompts the parties to appoint
arbitrators, it is very important in ad hoc arbitrations that the claimant already designates its
nominated arbitrator in its Request for Arbitration.
3.3. Constitution of the arbitral tribunal
Procedure
The parties are free to agree on a procedure for appointing the arbitrator or arbitrators, and on
the number of arbitrators. The parties may craft the procedure themselves, or simply agree to

be bound by the rules of an arbitral institution and have the institution administer the said
rules, including with respect to the constitution of the arbitral tribunal.
In arbitrations seated in the Philippines, in the absence of an agreement as to the procedure

and the number of arbitrators, the number of arbitrators shall be three (3), where each party
shall appoint one arbitrator, and the two (2) arbitrators appointed shall appoint the third
arbitrator.
The parties may also agree to appoint a sole arbitrator. If the parties are unable to agree on
the sole arbitrator, it is the arbitral institution which typically makes the appointment.
Most arbitral institutions follow the same procedure for constituting the arbitral tribunal,
usually, with the institution stepping in, in the event that the tribunal is not constituted within
a certain timeframe.
Date arbitral tribunal deemed constituted?
The arbitral tribunal is usually deemed constituted when the sole arbitrator or the third
arbitrator who has been nominated, has accepted the nomination and written communication
of said nomination and acceptance has been received by the party making the request.
Consider:
1. What is the significance of the date of constitution of the tribunal?
3.4. Nomination, appointment, and confirmation of arbitrators
Qualification of arbitrators
Anyone can be appointed as an arbitrator, subject to the requirements and disqualifications

provided by law and the agreement of the parties.
Consider:
1. How to determine if a potential arbitrator is qualified?

2. What are the factors to consider in selecting an arbitrator?
3. What are the traits/characteristics of a good arbitrator?
4. Should I appoint someone accredited by arbitral institutions and/or
organizations?
3.5. Exercises
(a) You received a letter from ABC Company notifying you of its intention to appoint you as
an arbitrator in an ad hoc arbitration against XYZ Company and asking if you are willing to
be appointed as an arbitrator. What are the steps that you should take towards constituting
the arbitral tribunal?
(b) Will the steps you took be different if the arbitration is an institutional arbitration, say
under the PDRCI Arbitration Rules?


SESSION 4
THE ARBITRAL TRIBUNAL:
JURISDICTION, DUTIES AND POWERS

4.1. Jurisdiction of the arbitral tribunal
Source of the arbitral tribunal’s jurisdiction
An arbitral tribunal’s jurisdiction primarily stems from the agreement of the parties and the
applicable law.
The arbitral tribunal has such powers as may be expressly or impliedly provided by the
parties' agreement and the law.
Competence-competence
The arbitral tribunal has the 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.
The arbitral tribunal has jurisdiction to rule on challenges to its own jurisdiction, whether it
be based on a claim that there is no arbitration agreement vesting it with such authority or
power or that such agreement is void, invalid, or unenforceable.
It also has the power to rule on an objection that it has no authority or power to decide a
specific issue brought before it because such issue is not within the scope or contemplation of
the arbitration agreement or is not among the issues the parties have agreed to submit to
arbitration.
See Rule 2.4, ADR Rules; see also E.P. Lizares, “Arbitration in the Philippines”, page 272
(2011).
The arbitral tribunal primarily determines issues relating to its own jurisdiction, pursuant to
the principle of competence-competence.
A court may have the opportunity to resolve issues regarding the tribunal's jurisdiction in the
following circumstances:
if the arbitral tribunal rules, on a preliminary basis, that it has jurisdiction, any party
may request a court in the seat of arbitration to further resolve the matter (but only as
a preliminary point and the evidentiary threshold is only prima facie)
if the arbitral tribunal defers its ruling on the preliminary issue of jurisdiction until the
final award, a party may file a petition to vacate or set aside the award before a court
in the seat or where enforcement is sought.
Judicial restraint
Courts are mandated to defer to the competence or jurisdiction of the arbitral tribunal to
resolve issues affecting the competence or jurisdiction of such tribunal, by allowing the
tribunal the first opportunity to rule upon such issues.
Consider:

1. What if the arbitral tribunal rules that it has no jurisdiction?
2. When should the question of jurisdiction of the arbitral be raised?
3. Does a challenge to the arbitral tribunal's jurisdiction affect the proceedings?
4.2. Duties and powers of the arbitral tribunal
General duties of an arbitral tribunal
Arbitrators have the duty to treat the parties equally (or to be impartial and independent) and
to accord them the full opportunity to present their case.
Arbitrators also have the implicit obligation to act diligently, and are required to complete
their functions until the termination of the arbitral proceedings.
Moreover, depending on the applicable law, arbitrators have the duty of confidentiality
See E.P. Lizares, "Arbitration in the Philippines”, p. 268 (2011).
Powers of an arbitrator in relation to the arbitration procedure?
The arbitral tribunal has considerable flexibility in selecting the most suitable procedure for
conducting the hearings and for receiving and evaluating evidence.
Thus, the arbitral tribunal also has the power to determine the admissibility, relevance,
materiality, and weight of any evidence, which necessarily includes the power of the arbitral
tribunal to adopt its own rules of evidence.
See Article 19, Model Law
The Roles Of Courts In International Arbitration
Assistive Role – referral to arbitration; issuance of and enforcement of interim

measures in aid of arbitration; enforcement of interim measures issued by the tribunal;
assistance in taking evidence; performance of the functions of a defaulting appointing
authority
Supervisory Role
Enforcement Role
The Curial Court - In proper cases, the curial court could be:
An assistive court
A supervising court
An enforcement court
In proper cases, the curial court in the exercise of its supervisory jurisdiction can:
Vacate or set-aside an award rendered in the jurisdiction where the curial court is
located

Suspend the setting aside proceedings for a period determined by it to give the arbitral
tribunal an opportunity to resume the arbitral proceedings or to take such other action
as in the arbitral tribunal’s opinion will eliminate the grounds for setting aside.
The curial court as an enforcement court may, in the proper cases:
Confirm or confirm and enforce an award (MAL Art 35); or

Refuse confirmation or refuse confirmation and enforcement of an award (MAL Art
36).
A Non-Curial Court could be:
An assistive court
A court of enforcement
The non-curial in the proper cases may:
Recognize and enforce an award (Convention Art 3; see also MAL Art 35); or
Refuse recognition or enforcement of an award (Convention Art 5; see also MAL Art
36).
If a petition to vacate were filed in the curial court, the non-curial court may:
Enforce the award; or

Suspend the enforcement proceedings with or without bond filed by the party resisting
enforcement (Convention Art 6; see also MAL Art 36.2).
The non-curial court has no power to vacate the award. This power is reserved to the curial
court in the exercise of its supervisory jurisdiction.
There is no prohibition against filing in different jurisdictions simultaneous petitions for

enforcement, subject to the rule that the applicant cannot recover more than what was
awarded.
The Court as an Enforcement Court
Time Bars - Petitions to Enforce: no express provision in the Model Law and the New York
Convention. Opinion is to follow contractual precepts of the seat unless if expressly provided
by law/agreement.
Choice of Remedies Against Award
Active Remedy – File petition to vacate within reglementary period (MAL Art 34).
Passive Remedy – Wait until the filing of petition to enforce and raise defenses
against enforcement (MAL Art 36; also Convention Art 5).
“No Second Bite at the Cherry” - Some jurisdictions follow the principle that if a party had
already filed a petition to vacate and it failed, the party will no longer be allowed to raise the

same grounds to resist enforcement. Accordingly, only public policy issues of the place of
enforcement will be allowed to resist enforcement.
Special ADR Rules Rule 12.2 (B) last sentence: “Failure to file a petition to set aside shall
preclude a party from raising grounds to resist enforcement of the award.” is an “only in the
Philippines provision”. The provision, based on the supervisory jurisdiction of a curial court,
had effectively intruded into the enforcement jurisdictions of both the curial and non-curial
courts not only under the Model Law but also the New York Convention.
Another classification of courts
1. Court of Primary Jurisdiction – the supervising court.

2. Court of Secondary Jurisdiction – the enforcement court.
3. Court of Eventual Enforcement – a court who intervenes in an arbitration neither as a
supervising court nor as an enforcement court.
Power to mediate disputes
Under the Domestic Arbitration Law, an arbitrator is prohibited from acting as a mediator in
any proceeding in which he is acting as an arbitrator
See Section 20, paragraph 2, RA 876.
Administrative services
UNCITRAL Notes, pp. 11-12, provide in part:
Various administrative services (e.g. hearing rooms or secretarial services) may need to be
procured for the arbitral tribunal to be able to carry out its functions. When the arbitration is
administered by an arbitral institution, the institution will usually provide all or a good part of
the required administrative support to the arbitral tribunal. When an arbitration administered
by an arbitral institution takes place away from the seat of the institution, the institution may
be able to arrange for administrative services to be obtained from another source, often an
arbitral institution; some arbitral institutions have entered into cooperation agreements with a
view to providing mutual assistance in servicing arbitral proceedings.
When the case is not administered by an institution, or the involvement of the institution does
not include providing administrative support, usually the administrative arrangements for the
proceedings will be made by the arbitral tribunal or the presiding arbitrator; it may also be
acceptable to leave some of the arrangements to the parties, or to one of the parties subject to
agreement of the other party or parties. Even in such cases, a convenient source of
administrative support might be found in arbitral institutions, which often offer their facilities
to arbitrations not governed by the rules of the institution. Otherwise, some services could be
procured from entities such as chambers of commerce, hotels or specialized firms providing
secretarial or other
support services.
Administrative services might be secured by engaging a secretary of the arbitral tribunal (also
referred to as registrar, clerk, administrator or rapporteur), who carries out the tasks under the
direction of the arbitral tribunal. Some arbitral institutions routinely assign such persons to

the cases administered by them. In arbitrations not administered by an institution or where the
arbitral institution does not appoint a secretary, some arbitrators frequently engage such
persons, at least in certain types of cases, whereas many others normally conduct the
proceedings without them.
To the extent the tasks of the secretary are purely organizational (e.g. obtaining meeting
rooms and providing or coordinating secretarial services), this is usually not controversial.
Differences in views, however, may arise if the tasks include legal research and other
professional assistance to the arbitral tribunal (e.g. collecting case law or published
commentaries on legal issues defined by the arbitral tribunal, preparing summaries from case
law and publications, and sometimes also preparing drafts of procedural decisions or drafts of
certain parts of the award, in particular those concerning the facts of the case). Views or
expectations may differ especially where a task of the secretary is similar to professional
functions of the arbitrators.
Such a role of the secretary is in the view of some commentators inappropriate or is

appropriate only under certain conditions, such as that the parties agree thereto. However, it
is typically recognized that it is important to ensure that the secretary does not perform any
decision-making function of the arbitral tribunal.
4.3. Remedies
Remedies against a ruling on jurisdiction
If the arbitral tribunal rules as a preliminary question that it has jurisdiction, any party may
generally request the court to decide the matter, within 30 days from receipt of the said
ruling.
If the arbitral tribunal defers its ruling on the preliminary questions on its jurisdiction until
the final award, the party's remedy is to file a petition to vacate or set aside the award once
rendered.
Consider:
1. What if the arbitral tribunal rules that it has no jurisdiction?
Impact on the arbitral proceedings
The arbitral tribunal may decide to resolve the challenge as a preliminary question, in which
case the hearing on the merits will likely not proceed until such challenge is resolved.
If the tribunal resolves that it has jurisdiction, any party may request the court to further
resolve this issue. However, while such request is pending, the arbitral tribunal may continue
the arbitral proceedings and make an award.
If the arbitral tribunal decides to resolve the challenge in an award on the merits, the arbitral
proceedings will continue notwithstanding a challenge to the tribunal's jurisdiction.
4.4. Exercises

ABC Company and XYZ Company were parties to a distributorship contract which contained
an arbitration clause providing for ad hoc arbitration in the Philippines in case of dispute.
ABC Company commenced an arbitration against XYZ Company for alleged unlawful
termination of the contract. You were appointed by the National President of the Integrated
Bar of the Philippines as sole arbitrator because the parties were unable to agree on a sole
arbitrator. ABC Company moved for your inhibition. You rejected the challenge. ABC
Company raised the challenged before the IBP President.
(a) While the challenge was pending with the IBP President, ABC Company requested the
suspension of the arbitration proceeding. How will you resolve the request?
(b) Assuming the IBP President also rejects the challenge, can ABC Company commence a
proceeding before the courts to renew the challenge?

SESSION 5
INTERIM MEASURES OF PROTECTION

5.1. Interim Measures; In general
Definition
A temporary measure by which, prior to the issuance of the award by which the dispute is
finally decided, the arbitral tribunal orders a party to take or refrain from taking action for the
purpose of achieving the objectives of the arbitration proceedings.
Some of the forms of an interim measure are orders to:
Maintain or restore the status quo pending determination of the dispute
Take action that would prevent, or refrain from taking action that is likely to cause,
current or imminent harm or prejudice to the arbitral process itself
Provide a means of preserving assets out of which a subsequent award may be

satisfied
Preserve evidence that may be relevant and material to the resolution of the dispute
See Article 17 (2) of the 1985 UNCITRAL Model Law on International Commercial
Arbitration.
Consider:
1. Why are interim measures referred to as interim, provisional or conservatory

measures?
2. On what grounds can I ask for interim measures?
3. When can arbitral tribunals issue interim measures?
4. When can arbitral tribunals issue interim measures?
Interim measures issued without notice to the other party
As a rule, interim measures cannot be issued without notice to the other party.
By way of exception, under the ADR Rules, courts can issue temporary orders of protection
prior to acting on a party’s application for an interim measure of protection (see Rules 5.7
and 5.9).
The temporary order of protection is valid only for twenty (20) days from notice to party
against whom it is directed but may be extended for another twenty (20) days in certain cases
where respondent delays the proceedings.
Prior notice to the other party may be dispensed with when the petitioner alleges in the
petition that there is an urgent need to either (a) preserve property, (b) prevent the respondent
from disposing of, or concealing, the property, or (c) prevent the relief prayed for from
becoming illusory because of prior notice, and the court finds that the reason/s given by the
petitioner are meritorious.

Note that under Articles 17 B and 17 C of the Model Law, as amended in 2006, an arbitral
tribunal, prior to acting on a party’s application for an interim measure, may grant a 20-day
preliminary order directing the other party not to frustrate the purpose of the interim measure
requested. The Philippines, however, has not yet adopted the 2006 amendments to the Model
Law.
5.2. Interim measures in domestic and international arbitration
Interim measure in domestic or international arbitrations
The power of the arbitral tribunal in both domestic arbitration and international commercial
arbitration to issue interim measures of protection is found in Sections 28 and 29 of the
Model Law.
The authority of arbitrators in domestic arbitration to issue interim measures of protection is

exactly as broad as, and is similar to, the authority of arbitrators to issue interim measures of
protection in international commercial arbitration
See E.P. Lizares, "Arbitration in the Philippines”, p. 291 (2011).
Consider:
1. Does the nature of the arbitration being either domestic or international have any
impact on the enforcement of the interim measure?
Interim measures in arbitrations seated in the Philippines or in foreign-seated

arbitrations
Interim measures are binding on the parties wherever they were issued, i.e. wherever the seat
of arbitration is.
However, some courts may hesitate in enforcing interim measures issued in arbitrations
which are seated in other jurisdictions on the ground that they are not arbitral awards which
may be enforced pursuant to the New York Convention.
Note that Article 17 of the 2006 Model Law sought to address this issue by providing that an
interim measure may be issued in the form of an award or in another form.
For jurisdictions which have not adopted the 2006 Model Law, like the Philippines, it may
nevertheless be possible for a party to a foreign-seated arbitration apply to a local court for
assistance in the enforcement of interim measures issued in foreign-seated arbitrations.
5.3. Enforcement of interim measures
Remedy for non-compliance with interim measures
The party in whose favor an interim measure of protection is issued may claim against the
non-compliant party damages resulting from noncompliance, including all expenses, and
reasonable attorney's fees, paid in seeking judicial enforcement.

Enforcement of interim measures in the Philippines
By agreeing to arbitration, parties are expected to abide by interim measures issued by the
arbitral tribunal.
Interim measures issued by the tribunal may be enforced thru the courts by proper
application.
A party to an arbitration may apply with the court for assistance in implementing or enforcing
an interim measure ordered by an arbitral tribunal.
Interim measures issued by the courts (as well as tribunal-issued interim measures where
parties seek court assistance) are enforced by such courts thru its coercive processes.
Consider:
1. Can interim measures issued in foreign-seated arbitrations be enforced in the

Philippines?
5.4. Interim Measures; In particular
Forms of interim measures
Examples of interim measures are:
Preliminary injunction directed against a party

Appointment of receivers
Detention, preservation, inspection of property that is the subject of the dispute in
arbitration.
Anti-suit injunctions
An anti-suit injunction is an interim measure issued by the arbitral tribunal to enjoin a party
to an arbitration pending before it from pursuing a court action involving the same subject
matter. It is issued on the basis that the court action is in violation of the arbitration
agreement.
Security for costs
Security for costs is an amount that a tribunal may require the claimant (or counter-claimant)
to set aside or deposit with the arbitral tribunal to answer for the claims that the respondent,
who is obliged or compelled to take part in the arbitration, may possibly recover from the
claimant in the event that the latter’s claim against the former may turn out to be unfounded.
This is intended to protect respondents from claimants (or counter-claimants) who pursue
frivolous claims.
5.5. Exercises
ABC Company commenced an ad hoc arbitration against XYZ Company. Prior to the
constitution of the arbitral tribunal, ABC Company applied with the Regional Trial Court of

Makati City for interim measure of protection (seeking to compel XYZ Company to continue
supplying materials to ABC Company under a supply agreement pending the arbitration).
The arbitral tribunal was later constituted without the RTC resolving ABC Company's
application for interim measure.
(a) Can ABC Company seek the same relief from the arbitral tribunal that is being sought
from the RTC?
(b) If yes, what are the requirements that ABC Company should satisfy to be entitled to the
interim measure sought?

SESSION 6
GENERAL PRINCIPLES OF ARBITRATION PROCEDURE
AND THE
PRELIMINARY CONFERENCE

6.1. Arbitration Procedure
Procedural rules governing the arbitration proceeding
Parties are at liberty to agree on the procedure to be adopted/followed by the arbitral tribunal
in conducting the arbitral proceedings.
Should parties fail to come to an agreement, the arbitral tribunal may conduct the arbitration
proceedings in a manner it deems appropriate.
If parties choose institutional arbitration, the procedural rules of the chosen institution will
generally apply, subject to any contrary agreement of the parties.
If parties choose ad hoc arbitration, then they can determine the procedural rules that will
govern the conduct of their proceedings. Parties may adopt the UNCITRAL Arbitration
Rules in ad hoc arbitration.
Consider:
1. Are there time limits for the completion of arbitration proceedings?

2. Are representatives required to show proof of authorization?
3. Can there be postponements and extensions of time in arbitral proceedings?
Sometimes parties who have not included in their arbitration agreement a stipulation that a set
of arbitration rules will govern their arbitral proceedings might wish to do so after the
arbitration has begun. If that occurs, the UNCITRAL Arbitration Rules may be used either
without modification or with such modifications as the parties might wish to agree upon. In
the alternative, the parties might wish to adopt the rules of an arbitral institution; in that case,
it may be necessary to secure the agreement of that institution and to stipulate the terms under
which the arbitration could be carried out in accordance with the rules of that institution.
However, caution is advised as consideration of a set of arbitration rules might delay the
proceedings or give rise to unnecessary controversy. It should be noted that agreement on
arbitration rules is not a necessity and that, if the parties do not agree on a set of arbitration
rules, the arbitral tribunal has the power to continue the proceedings and determine how the
case will be conducted. (UNCITRAL Notes, p. 9)
Process of making decisions on organizing arbitral proceedings
The UNCITRAL Notes, pp. 2-3, provide in part:
Decisions by the arbitral tribunal on organizing arbitral proceedings may be taken with or
without previous consultations with the parties. The method chosen depends on whether, in
view of the type of the question to be decided, the arbitral tribunal considers that
consultations are not necessary or that hearing the views of the parties would be beneficial for
increasing the predictability of the proceedings or improving the procedural atmosphere.
The consultations, whether they involve only the arbitrators or also the parties, can be held in
one or more meetings, or can be carried out by correspondence or telecommunications such
as telefax or conference telephone calls or other electronic means. Meetings may be held at
the venue of arbitration or at some other appropriate location.

In some arbitrations a special meeting may be devoted exclusively to such procedural
consultations; alternatively, the consultations may be held in conjunction with a hearing on
the substance of the dispute. Practices differ as to whether such special meetings should be
held and how they should be organized. Special procedural meetings of the arbitrators and the
parties separate from hearings are in practice referred to by expressions such as “preliminary
meeting”, “pre-hearing conference”, “preparatory conference”, “pre-hearing review”, or
terms of similar meaning. The terms used partly depend on the stage of the proceedings at
which the meeting is taking place.
Non-lawyers as representative of parties in arbitration proceeding
Non-lawyers may represent parties in arbitration proceedings.
In the Philippines foreign / non-Filipino lawyers may represent parties in arbitration

proceedings conducted or seated in the Philippines.
6.2. Preparing for preliminary conference
Nature and Purpose
A preliminary conference is a proceeding that provides an opportunity for the parties to

discuss with the arbitral tribunal the procedure and timetable to be followed in the arbitration.
It generally gives the parties flexibility to craft a procedure that caters to their specific needs.
Consider:
1. When should the preliminary conference be held?

2. Are there any distinctions between preliminary conference, preliminary hearing
and case management conference?
6.3. Preliminary conference proper
Procedure for preliminary conference
The tribunal usually confers with the parties either in person or by telephone conference, to
discuss various procedural issues they anticipate, and the structure and timing of each
procedural step in the arbitration. By conferring with the parties, the tribunal assures
transparency, that the procedure suits their needs and that the parties know what to expect and
what are expected of them. (Dr. Emilia Onyema, Introduction to International Commercial
Arbitration, 2012 Revision)
Matters for discussion during the preliminary conference
The UNCITRAL Notes (pp. 5-7) provides a list of (and discussions on) the matters that may
be considered in organizing arbitral proceedings. Many of these matters may be considered
during a preliminary conference. The arbitral tribunal may, depending on the circumstances,
decide to consider them earlier or even after the preliminary conference.

These matters include:
1. Arbitration rules
2. Language of proceedings
3. Place of arbitration
4. Administrative services that may be needed for the arbitral tribunal to carry out its
functions
5. Deposits in respect of costs
6. Confidentiality of information relating to the arbitration
7. Routing of written communications among the parties and the arbitrators
8. Telefax and other electronic means of sending documents
9. Arrangements for the exchange of written submissions
10. Practical details concerning written submissions and evidence (e.g. method of
submission, copies, numbering, references)
11. Defining points at issue; order of deciding issues; defining relief or remedy sought
12. Possible settlement negotiations and their effect on scheduling proceedings 47
13. Documentary evidence
14. Physical evidence other than documents
15. Witnesses
16. Experts and expert witnesses
17. Hearings
The list, while not exhaustive, covers a broad range of situations that may arise in an
arbitration. In many arbitrations, however, only a limited number of the matters mentioned in
the list need to be considered. It also depends on the circumstances of the case at which stage
or stages of the proceedings it would be useful to consider matters concerning the
organization of the proceedings. Generally, in order not to create opportunities for
unnecessary discussions and delay, it is advisable not to raise a matter prematurely, i.e. before
it is clear that a decision is needed. When an arbitration is administered by an arbitral
institution, various matters discussed in the Notes may be covered by the rules and practices
of that institution. (UNCITRAL Notes, p. 3)
6.4. Matters arising from the preliminary conference
Defining points at issue
In considering the parties’ allegations and arguments, the arbitral tribunal may come to the
conclusion that it would be useful for it or for the parties to prepare, for analytical purposes
and for ease of discussion, a list of the points at issue, as opposed to those that are
undisputed. If the arbitral tribunal determines that the advantages of working on the basis of
such a list outweigh the disadvantages, it chooses the appropriate stage of the proceedings for
preparing a list, bearing in mind also that subsequent developments in the proceedings may
require a revision of the points at issue. Such an identification of points at issue might help to
concentrate on the essential matters, to reduce the number of points at issue by agreement of
the parties, and to select the best and most economical process for resolving the dispute.
However, possible disadvantages of preparing such a list include delay, adverse effect on the
flexibility of the proceedings, or unnecessary disagreements about whether the arbitral
tribunal has decided all issues submitted to it or whether the award contains decisions on
matters beyond the scope of the submission to arbitration. The terms of reference required

under some arbitration rules, or in agreements of parties, may serve the same purpose as the
above-described list of points at issue. (UNCITRAL Notes, p. 17)
Terms of Reference
Some arbitral institutions require the arbitral tribunal to agree a Terms of Reference with the
parties.
This is a document prepared by the arbitral tribunal either from the written submissions or in
a meeting with the parties, and which contains important matters affecting the arbitration,
such as:
Full names and contact details of the parties and their counsels
Summary of claims and defences
Summary of issues (if appropriate)
Full names and contact details of each of the arbitrators
Place of arbitration
Specific powers given to the arbitral tribunal such as authority to act as amiable
compositeur or to decide ex aequo et bono
See Article 23, ICC Arbitration Rules.
Although it was the ICC which introduced this requirement, a similar practice is adopted in
other arbitrations, whenever the tribunal deems it appropriate or helpful (Karen Mills, Terms
of Reference, An Arbitrators Perspective, January 31, 2005) or because similar requirements
had been adopted by other arbitral institutions.
Possible settlement negotiations and their effect on scheduling proceedings
Attitudes differ as to whether it is appropriate for the arbitral tribunal to bring up the
possibility of settlement. Given the divergence of practices in this regard, the arbitral tribunal
should only suggest settlement negotiations with caution. However, it may be opportune for
the arbitral tribunal to schedule the proceedings in a way that might facilitate the continuation
or initiation of settlement negotiations. (UNCITRAL Notes, p. 18)
Provisional timetable
A provisional timetable of the arbitration is established by the arbitral tribunal as soon as

practicable, after its constitution and after gathering the respective views of the parties.
Adjustments to this timetable may be done as needed, during the proceedings and upon
agreement of the parties
See Article 17, Section III, UNCITRAL Arbitration Rules.
Procedural orders
Procedural orders are issued by the tribunal after the preliminary conference. They set the
overall procedural scheme for the arbitration by summarizing the issues to be resolved, fixing
time limits for delivery of documents and reports, and set provisional hearing dates

See Redfern and Hunter, International Arbitration, 2009, p. 364.
Amendment or supplement to claim/defense
Unless otherwise agreed by the parties, either party may amend or supplement his claim or
defense during the course of the arbitration proceedings, unless the tribunal finds the same
unnecessary and intended merely to cause delay
See Article 23, (2), Chapter V, UNCITRAL Model Law.
6.5. Exercises
application for interim measure. ABC Company decided not to seek interim relief from the
arbitral tribunal. The parties have submitted their respective Statement of Claim and
Statement of Defense and the preliminary conference is scheduled today.
Divide your group into three, with each sub-group playing the roles of Arbitrators, Counsel
for ABC Company and Counsel for XYZ Company, respectively.
Play the above-designated roles, with the end in view of achieving the purposes of a
preliminary conference.

SESSION 7
WRITTEN SUBMISSIONS, EVIDENCE AND
MERITS HEARING

7.1. Written submissions
Submissions in arbitrations
Parties formally set out their cases through written submissions.
A claimant preliminarily indicates the nature and circumstances of its claims through a
Request for (or Notice of ) Arbitration, while the Respondent raises its defenses through an
Answer (or Response).
After the parties have initially stated their claims and defences, they may wish, or the arbitral
tribunal might request them, to present further written submissions so as to prepare for the
hearings or to provide the basis for a decision without hearings. In such submissions, the
parties, for example, present or comment on allegations and evidence, cite or explain law, or
make or react to proposals. In practice such submissions are referred to variously as, for
example, statement, memorial, counter-memorial, brief, counter-brief, reply, réplique,
duplique, rebuttal or rejoinder; the terminology is a matter of linguistic usage and the scope
or sequence of the submission. (UNCITRAL Notes, p. 1)
Depending on the arbitration rules applicable, the parties set out their full cases through a
Statement of Claim, Statement of Defense/Counterclaim and a Reply, or such other
submissions as may be agreed by the parties and the arbitral tribunal. In some cases, a party
may wish to adopt its Request/Notice or Answer/Response as their Statements of Claim or
Defense/Counterclaim.
It is advisable that the arbitral tribunal set time-limits for written submissions. In enforcing
the time-limits, the arbitral tribunal may wish, on the one hand, to make sure that the case is
not unduly protracted and, on the other hand, to reserve a degree of discretion and allow late
submissions if appropriate under the circumstances. In some cases the arbitral tribunal might
prefer not to plan the written submissions in advance, thus leaving such matters, including
time-limits, to be decided in light of the developments in the proceedings. In other cases, the
arbitral tribunal may wish to determine, when scheduling the first written submissions, the
number of subsequent submissions. (UNCITRAL Notes, pp. 15-16)
Consider:
1. How do parties communicate their submissions to the arbitral tribunal?

2. What written submissions are exchanged in an arbitration?
Sequential and simultaneous submissions
The time as to when written submissions are exchanged is governed by the rules of
arbitration adopted by the parties and the procedural timetable issued by the arbitral tribunal.
The parties and the arbitral tribunal may agree on sequential or simultaneous submissions.
Sequential submission is when the claimant files a Statement of Claim and the respondent
files a Statement of Defense and Counterclaim, and so forth. Simultaneous submissions is
when both parties submit their respective Statements of Claim, thereafter their respective
Statements of Defense (and Counterclaim, if any), and thereafter their respective Replies.

Written submissions on an issue may be made consecutively, i.e. the party who receives a
submission is given a period of time to react with its counter submission. Another possibility
is to request each party to make the submission within the same time period to the arbitral
tribunal or the institution administering the case; the received submissions are then forwarded
simultaneously to the respective other party or parties. The approach used may depend on the
type of issues to be commented upon and the time in which the views should be clarified.
With consecutive submissions, it may take longer than with simultaneous ones to obtain
views of the parties on a given issue. Consecutive submissions, however, allow the reacting
party to comment on all points raised by the other party or parties, which simultaneous
submissions do not; thus, simultaneous submissions might possibly necessitate further
submissions. (UNCITRAL Notes, pp. 15-16)
Consider:
1. Are the written submissions the same in both arbitration and litigation
2. What would be the situations where either a sequential or simultaneous submission
approach be advisable?
Practical details concerning written submissions and evidence (e.g. method of

submission, copies, numbering, references)
The UNCITRAL Notes enumerate some practical matters that should be considered
depending on the volume and kind of documents to be handled during the arbitration:
Whether the submissions will be made as paper documents or by electronic means, or

both
The number of copies in which each document is to be submitted
A system for numbering documents and items of evidence, and a method for marking
them, including by tabs
The form of references to documents (e.g. by the heading and the number assigned to
the document or its date)
Paragraph numbering in written submissions, in order to facilitate precise references
to parts of a text
When translations are to be submitted as paper documents, whether the translations
are to be contained in the same volume as the original texts or included in separate
volumes. (UNCITRAL Notes, pp. 16-17)
7.2. Evidence
Rules of evidence
It is not advisable to apply rules of civil procedure to arbitrations as this defeats one of the
main advantages of arbitration - to provide the parties with flexibility in determining the
procedure for the resolution of their dispute.
The parties may instead adopt the IBA Rules on the Taking of Evidence in International
Arbitration ("IBA Rules"), which is a collection of rules compiled by the IBA from best
practices in international arbitration proceedings.
Documentary evidence

The documentary evidence submitted in arbitrations, including the manner and time for their
submission, are governed by the rules of arbitration adopted by the parties.
However, it is common for documentary exhibits submitted to include legal (provisions of

law relied upon) and factual (contracts, correspondence, etc. relied upon) exhibits.
Documentary evidence are usually exchanged at the same time that the written submissions
which they are supposed to support are exchanged.
Before the merits hearing, the arbitral tribunal may request the parties to produce a hearing
bundle, which will include all exhibits previously submitted. The hearing bundle may be a
consolidated bundle of both claimant's and respondent's exhibits or separate bundles for the
parties.
Some of the matters that should be considered in respect of documentary exhibits are
(UNCITRAL Notes, pp. 19-120):
Time-limits for submission of documentary evidence intended to be submitted by the

parties and consequences of late submission
Whether the arbitral tribunal intends to require a party to produce documentary
evidence
Should assertions about the origin and receipt of documents and about the correctness
of photocopies be assumed as accurate
Are the parties willing to submit jointly a single set of documentary evidence
Should voluminous and complicated documentary evidence be presented through
summaries, tabulations, charts, extracts or samples
Marking of exhibits
Factual exhibits are usually labelled as "C-1", "C-2" and so on for the Claimant and "R-1",
"R-2" and so on for the Respondent.
Legal exhibits are usually marked with "CL" for claimant's legal exhibits and "RL" for
respondent's legal exhibits.
Ocular inspections
In some arbitrations the arbitral tribunal is called upon to assess physical evidence other than
documents, for example, by inspecting samples of goods, viewing a video recording or
observing the functioning of a machine. The arbitral tribunal should consider what
arrangements should be made for this. (UNCITRAL Note, pp. 20-21)
The IBA Rules provide that the arbitral tribunal may, at the request of a Party or on its own
motion, inspect or require the inspection of, among others, any site, property or machinery as
it deems appropriate. The arbitral tribunal shall, in consultation with the parties, determine
the timing and arrangement for the inspection.
Discovery

Under the IBA Rules, a party may submit to the arbitral tribunal and to the other parties a
request to produce documents.
A party requesting documents should include statements:
Sufficiently describing the documents

Explaining their relevance and materiality
That the same documents are not in the possession, custody or control of the
requesting party or a statement of the reasons why it would be unreasonably
burdensome for the requesting party to produce such documents
The reasons why the requesting party assumes the documents requested are in the
possession, custody or control of another party.
Consider:
1. Can the tribunal investigate the facts on its own initiative?

2. Does the tribunal have to power to require submission of documents?
Admissibility, relevance, materiality, and weight of evidence
Article 19(2) of the Model Law applicable in both domestic arbitration and international
commercial arbitration provides that the arbitral tribunal has the “the power to determine the
admissibility, relevance, materiality and weight of any evidence.”
Even under the Domestic Arbitration Law, the arbitral tribunal shall be the sole judge of the
relevancy and materiality of the evidence offered or produced before them.
See E.P. Lizares, “Arbitration in the Philippines” pp. 288 (2011) .
7.3. Factual and expert witnesses
To facilitate preparations of the parties for the hearings, the arbitral tribunal may consider it
appropriate to clarify, in advance of the hearings, some or all of the following issues
(UNCITRAL Notes, pp 21-26):
Advance notice of a party's witnesses

Written witnesses’ statements
Order of examination
Requirement for oath or affirmation and form thereof
Witnesses presence
Order for calling of witnesses
Contacts with witnesses
Hearing representatives of a party
Expert of a party
Expert appointed by the arbitral tribunal
Expert’s terms of reference
Form for witness statements

Witness statements contain, among others:
The full name and address of the witness

Statement regarding his or her present and past relationship (if any) with any of the
Parties
A description of his or her background, qualifications, training and experience, if
relevant to the dispute
A full and detailed description of the facts, and the source of the witness’s
information as to those facts
Form for expert reports
Under the IBA Rules, the expert report shall contain:
The full name and address of the Party Appointed Expert, a statement regarding his or
her present and past relationship (if any) with any of the Parties, their legal advisors
and the Arbitral Tribunal
A description of his or her background, qualifications, training and experience;
A description of the instructions pursuant to which he or she is providing his or her
opinions and conclusions
A statement of his or her independence from the Parties, their legal advisors and the
Arbitral Tribunal
A statement of the facts on which he or she is basing his or her expert opinions and
conclusions; (e) his or her expert opinions and conclusions, including a description of
the methods, evidence and information used in arriving at the conclusions.
7.4. Preparing for the hearing
Pre-hearing conference
Well-experienced arbitrators usually call a pre-hearing conference before the merits hearing.
This is done either by telephone conference or an in-person meeting. The purpose is to settle
procedural matters in preparation for the hearing, such as submission of pre-hearing briefs,
the number of witnesses to be presented, the order of presentation of witnesses, as well as the
time to be allocated among the witnesses. The agenda for the meeting depend on the parties
and the arbitral tribunal and always with the objective of making the merits hearing as
efficient and fair as possible.
Hearing bundle
Hearing bundles are compilations of documents. They are so organized so that witnesses,
counsel, and arbitrators can refer to them with relative ease, particularly during the hearing.
Parties may prepare joint bundles that they can use as common reference. In cases where the
dispute involves voluminous documentation, a bundle for each witness may also be prepared.
Skeleton argument
A skeleton argument is akin to a pre-trial brief. It usually contains the arguments of a party,
the testimony of witnesses, and citations of legal authorities. Its purpose is to apprise the

other party and the tribunal of the position of the party presenting the same. Arbitral
tribunals may require their submission for the purpose of narrowing the issues during the
merits hearing. The submission of skeleton arguments forces parties to identify and concisely
describe the issues they wish to address during the merits hearing.
7.5. Hearing proper
Conduct of hearings
Laws on arbitral procedure and arbitration rules often have provisions as to the cases in
which oral hearings must be held and as to when the arbitral tribunal has discretion to decide
whether to hold hearings. If it is up to the arbitral tribunal to decide whether to hold hearings,
the decision is likely to be influenced by factors such as, on the one hand, that it is usually
quicker and easier to clarify points at issue pursuant to a direct confrontation of arguments
than on the basis of correspondence and, on the other hand, the travel and other cost of
holding hearings, and that the need of finding acceptable dates for the hearings might delay
the proceedings. The arbitral tribunal may wish to consult the parties on this matter.
If they are to be conducted, hearings are generally conducted without delay and in
compliance with the timelines set by the parties and the arbitral tribunal. Because the parties
have agreed on the date of the hearing way in advance, it is seldom that merits hearing are
rescheduled or cancelled.
Should a party seek to defer or reschedule the merits hearing, the request must be submitted
to the arbitral tribunal ahead of the scheduled hearing and should be supported by well-
founded justifications.
The arbitral tribunal presides over arbitration proceedings as judges would but in a less
formal manner.
The arbitral tribunal may also, depending on their legal background, tend to participate in the
proceedings either more pro-actively (inquisitorial approach) or less (adversarial approach).
In all cases, the arbitral tribunal sees to it that both parties are given full opportunity to
present their case.
Matters for consideration in relation to the hearings, include (UNCITRAL Notes, pp. 26-29)
Whether one period of hearings should be held or separate periods of hearings

Setting dates for hearings
Whether there should be a limit on the aggregate amount of time each party will have
for oral arguments and questioning witnesses
The order in which the parties will present their arguments and evidence
Length of hearings
Arrangements for a record of the hearings
Whether and when the parties are permitted to submit notes summarizing their oral
arguments
Consider:

1. Can hearings be dispensed with? If yes, under what circumstances?
2. In what order are witnesses presented?
3. Are witnesses examined on direct and cross examination?
Bifurcation of proceedings
Splitting of the proceedings into phases or bifurcation may be useful where there are
dispositive preliminary issues (e.g. limitation periods) or major issues of jurisdiction to
determine.
Each phase may result to the issuance of an award.
The dispute may also conveniently be divided into phases on liability, quantum and costs.
Depending on how it is implemented, bifurcation may either save time and cost or result in
protracted proceedings and additional costs.
Consider:
1. Can the arbitral tribunal require a person to testify as a witness?

2. Can the tribunal cite a person in contempt for refusing to appear before it?
3. Should all arbitrators, if there are three arbitrators, be present during the
hearings?
7.6. Post-hearing
Post-hearing briefs
This is not indispensable, but may sometimes be useful.
Practices differ as to whether, after the hearings have been held, written submissions are still
acceptable. While some arbitral tribunals consider post-hearing submissions unacceptable,
others might request or allow them on a particular issue. Some arbitral tribunals follow the
procedure according to which the parties are not requested to present written evidence and
legal arguments to the arbitral tribunal before the hearings; in such a case, the arbitral tribunal
may regard it as appropriate that written submissions be made after the hearings.
Reopening of hearings
Rules of various arbitral institutions have provisions allowing submission of additional

evidence after the hearings has been terminated.
In ad hoc arbitrations, arbitral tribunals may also allow submission of additional evidence
after the hearings have been closed, depending on the circumstances.
7.7. Exercises

application for interim measure. ABC Company decided not to seek interim relief from the
arbitral tribunal. After exchange of written submissions and the holding of a preliminary
conference, the arbitral tribunal scheduled the hearing.
(a) At the start of the hearing, ABC Company's counsel asked the arbitral tribunal to be
allowed to present an additional witness, arguing that the witness only became available a
few days before the start of the hearing. The witness is available to testify during the
hearing. As the arbitral tribunal, how will you deal with the request?
(b) During the second day of the hearing, one of the arbitrators, XYZ Company's appointed
arbitrator, became ill and could not attend the hearing. The arbitrator who was absent was
ABC Company's counsel was amenable to the hearings being conducted with only two (2)
arbitrators present. As the arbitral tribunal, how will you deal with the objection?

SESSION 8
PREPARING THE AWARD

8.1. Arbitral Awards
Definition
An award is any partial or final decision by an arbitrator(s) that resolves the issue or
controversy submitted to arbitration.
The award must state the reasons upon which it is based, unless the parties have agreed that
no reasons are to be given or the award is an award on agreed terms.
It must further state its date, indicate the place of arbitration and must be delivered to each
party.
Under the Model Law, the award shall be made in writing and shall be signed by the
arbitrator or arbitrators. In arbitral proceedings with more than one arbitrator, the signatures
of the majority of all members of the arbitral tribunal shall suffice, provided that the reason
for any omitted signature is stated.
In the Philippines, awards pursuant to a domestic arbitration are required to be

acknowledged, in addition to being signed, by a majority of the arbitrators.
Consider:
1. What does it mean for an award to be "acknowledged"?
Different kinds of awards
An award can be any of the following:
A Final or Partial Award. A Final Award that contains the final decision of the arbitral
tribunal on all matters that were submitted to it. While all awards are final in that they
dispose of a particular issue in the arbitration with finality, an award may also be considered
final in the sense that no further issues are left unresolved by the arbitral tribunal. A Final
Award in this sense may be distinguished from a Partial Award which is an award that finally
settles a portion of the dispute that can be separated from the remainder of the dispute but it
does not necessarily terminate the arbitration or the mandate of the arbitrators to consider the
remaining portions of the dispute. Each Partial Award is subject to set aside proceedings as
well as enforcement proceedings.
Consent or Agreed Awards. A Consent Award is an award issued by the arbitral tribunal on
the basis of the parties’ settlement agreement.
A Default Award. A default award is a final award issued in an arbitration where the
respondent has not participated in the proceedings despite adequate notice.
An Additional Award. An additional award is an award issued by the arbitral tribunal at the
request of a party in the event the final award fails to address every issue submitted to
arbitration.

A Corrected Award. A corrected award is an award issued after the final award is issued, the
purpose of which is to correct items in the final award that do not affect the subject matter of
the award. Such corrections deal with small errors in calculation, or dates and any clerical or
typographical error.
Interpretation of Final Award. An interpretation of the final award may be issued in order to
clarify the operative portion of an award or apparent inconsistent statements in an award.
The interpretation must be of the award, not of the merits.
Local or Foreign Awards. Local Awards are awards rendered in domestic or international
arbitral proceedings in the Philippines. Foreign Awards are awards rendered in international
arbitral proceedings conducted outside the Philippines.
Domestic Arbitration Awards or International Arbitration Awards. An International

Arbitration Award is an award rendered by an International Arbitration.
Consider:
1. When is an arbitration "international"?
Awards, interim measures and emergency relief
Awards contain the resolution of substantive matters that were submitted to arbitration by the
parties.
An interim measure or emergency relief is a temporary measure ordered by the arbitral

tribunal, before a final award issued, dealing generally with provisional remedies requested
by any party.
An interim measure is issued by a court or an arbitral tribunal, while an emergency relief is

issued by an Emergency Arbitrator appointed to deal precisely with an emergency application
before the constitution of the arbitral tribunal.
In some jurisdictions, and under certain circumstances, interim measures of protection,

including emergency relief, are considered awards. Whether or not an interim measure may
be considered a final award may have significance for purposes of enforcement, depending
on the law of the place where such interim measure is sought to be enforced.
Generally, an award cannot be modified by the arbitral tribunal, save for correcting small
errors in calculation, or dates and any clerical or typographical error. The arbitral tribunal
may modify, suspend, and terminate an order of interim measure.
An award issued from a jurisdiction that is a signatory to the New York Convention is
relatively easily enforceable by courts in more than 150 State-signatories to the New York
Convention, while an order of interim measure or emergency relief is generally not
enforceable thereunder.
Both an award and an order of interim measure or emergency relief may be enforced by
courts in jurisdictions that had adopted the 2006 amendments to the Model Law.

Consider:
1. Is there a time-limit for making an award?
8.2. Award on costs
"Costs" in arbitration
The term “costs of arbitration” generally includes:
Fees of the arbitral tribunal

Travel and other expenses incurred by the arbitrators
Costs of expert advice and of other assistance required by the arbitral tribunal
Travel and other expenses of witnesses
Legal and other costs
Fees and expenses of the appointing authority
Other assistance required by the arbitral tribunal
In institutional arbitration, the arbitral institution usually requires the payment of advances on
costs for the following:
Registration fees, which may or may not be counted towards the administrative costs
by the institution
Administrative costs, which are the fees charged by the institution to run and manage
the case, and which are often, but not always, capped
Arbitrators’ fees, which generally consist of the remuneration of the sole arbitrator or
the arbitral tribunal
Allocation of costs
The arbitral tribunal has the power to award costs against a party or parties. It may also
allocate the costs among the parties if allowed by the parties’ agreement, the relevant
arbitration rules, or law governing the arbitration as determined by the parties or the tribunal.
The cost of arbitration is, however, usually borne by the unsuccessful party or parties, unless
the arbitral tribunal determines that apportionment is more reasonable, taking into account the
circumstances of the case.
It should be noted that at the commencement and in the course of the arbitration, the arbitral
tribunal would already have directed the parties to make deposits for the costs of the
arbitration. If there is an administering institution, its rules will provide for the details for
such deposit.
Exemplary damages
Whether an arbitral tribunal may award exemplary damages would depend on the parties’
agreement and the applicable law as determined by the arbitral tribunal.

Interest
Interest is generally awarded in arbitration as a form of damages.
Arbitrator fees
The parties are free to agree on the terms of appointment of the arbitral tribunal.
Institutional arbitration rules usually provide for the relevant methods for computing the
arbitrators’ fees, e.g., by hourly rate or by lump sum as determined by the amount in dispute.
The fees and expenses of the arbitrators shall be reasonable in amount, and there are several
considerations for the arbitrators to take into account, such as: (a) the amount in dispute; (b)
the complexity of the subject matter; (c) the time spent by the arbitrators; and (d) other
relevant circumstances of the case.
8.3. Exercises
8.3.1. First Exercise
The Claimant’s Statement of Claim sets forth the ultimate facts in support of its claim for
breach of contract and, for relief, prays that an Award be issued (1) ordering the Respondent
to pay Php 2 M, as liquidated damages for delay, (2) Php 3 M, for reimbursement of the cost
for rectification of defective works, (3) attorney’s fees, and (4) cost of arbitration.
The Respondent filed a Statement of Defence denying liability for all the claims and set up a
Counterclaim for (1) Php 1 M exemplary damages on the ground that the claims are
malicious and frivolous, (2) Php 300,000 for attorney’s fees, and (3) cost of arbitration.
After hearing (where both parties presented evidence), the sole Arbitrator issued a Final
Award, which reads as follows:
“After considering the recitals in the Statement of Claim and the Statement of Defence and
Counterclaim, I hereby determine and resolve that the Claimant has duly proven its principal
claims and therefore order the Respondent to pay the Claimant (a) Php 2 Million as liquidated
damages for delay, (b) Php 3 Million as reimbursement of the rectification cost, (c) Php
300,000 for attorney’s fees, (d) legal interest of 6% p.a. on the principal amounts of Php 2 M
and Php 3 M, and (e) Php300,00 for attorneys. The counterclaims are denied for lack of
merit. Cost of arbitration in the total amount of Php 400,000 is to be borne, share-and-share-
alike, by both parties.”
8.3.2. Second Exercise
The Claimant commenced arbitration against the Respondent for damages for breach of
contract and, for relief, prayed that an Award be issued ordering the Respondent to pay the
Claimant Php 2.5 M representing the unpaid balance of the promissory note, stipulated
interest on said principal amount of 12% p.a. from date of extrajudicial demand on 20
January 2016 until fully paid, Php 200,000 as and for attorney’s fees, and the cost of
arbitration. The Respondent refused to participate in the arbitration, despite proper notice and
reasonable opportunity to present its defence.

The Sole Arbitrator, without requiring the Claimant to present evidence to prove its claims,
issued the following Default Award:
By reason of the unexplained failure of the Respondent to participate in the arbitral

proceedings, despite the fact on record that it has been served properly with Notice of
Arbitration, to which was attached the Statement of Claim, the Respondent is hereby declared
in default and on the basis of the Statement of Claim and the documents attached thereto,
which are uncontested, the Respondent is hereby ordered to pay the Claimant (a) the amount
of Php2.5 M, representing the balance of the promissory note, (b) interest thereon at 12% p.a.
from 20 January 2016 until the amount is fully paid, (c) Php200,00 as and for attorney’s fees,
and (d) cost of arbitration in the amount of Php230,000.”

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PHILIPPINE INSTITUTE OF ARBITRATORS (PIARB)

WORKBOOK / COURSE MODULE1

1 Prepared by and an intellectual property of the Philippine Institute of Arbitrators.

How to use this workbook……………………………………………………………. 4

Recommended reference materials…………………………………………………... 5

Principles and Concepts………………………………………………………………… 9

Commencing an arbitration and constituting the Arbitral Tribunal…………………. 21

The Arbitral Tribunal: Jurisdiction, Duties and Powers………………………………. 26

Interim Measures of Protection………………………………………………………… 32

Arbitration Procedure and Preliminary Conference…………………………………… 37

Written Submissions, Evidence and Merits Hearings…………………………………. 43

Preparing the Award…………………………………………………………………….. 52

PIArb - Course Module for Fast-Track to Member 2

The Philippine Institute of Arbitrators ("PIArb") is a non-stock, non-profit organization that

PIArb - Course Module for Fast-Track to Member 3

PIArb - Course Module for Fast-Track to Member 4

Main reference material

1. PIArb Commercial Arbitration Handbook, Anvil Publishing, 2015

Other reference materials

Notable Laws and Rules

1. A.M. No. 07-11-08-SC - Special Rules of Court on Alternative Dispute Resolution

PIArb - Course Module for Fast-Track to Member 5

Session 1 - Principles and Concepts

1.1. The ADR mechanism

Session 2 - Arbitration Agreement

2.1. Arbitration agreement

Session 3 - Commencing an arbitration and Constituting the Arbitral Tribunal

3.1. Commencement of arbitration

Session 4 - The Arbitral Tribunal: Jurisdiction, Duties and Powers

4.1. Jurisdiction of the arbitral tribunal

Session 5 - Interim Measures of Protection

5.1. Interim Measures; In general

PIArb - Course Module for Fast-Track to Member 6

Session 6 - Arbitration Procedure; General Principles; Preliminary Conference

6.1. Arbitration procedure

Session 7 - Written Submissions, Evidence and Merits Hearing

7.1. Written submissions

Session 8 - Preparing the Award

8.1. Arbitral awards

PIArb - Course Module for Fast-Track to Member 7

Session 1 - Principles and Concepts in Arbitration

PIArb - Course Module for Fast-Track to Member 8

PIArb - Course Module for Fast-Track to Member 9

Alternative Dispute Resolution

See Section 3 (a), Republic Act No. 9285 (ADR Act).

1. What are examples of ADR mechanisms?

See Section 3 (d), ADR Act.

A voluntary dispute resolution process in which one or more arbitrators, appointed in

1. What are the advantages and disadvantages of Arbitration?

“Arbitration agreement” is an agreement by the parties to submit to arbitration all or

PIArb - Course Module for Fast-Track to Member 10

Constituent Elements of an Arbitration: (a) It is contractual; and (b) It is judicial (Thomas E.

Tribunal’s power arises from contract.

Other Characteristics of an Arbitration:

Private Dispute Resolution Process - Operates extrajudicially and with minimal

Tribunal an Instrumentality of the Parties - In arbitration the parties by contract create

PIArb - Course Module for Fast-Track to Member 11

Mandatory Procedure - Effect of entering into an arbitration agreement. Role of party

Principle of finality of award is contractual - Agreement re binding effect of award.

Any trade transaction for the supply or exchange of goods or services

1. Are construction disputes considered "commercial" disputes?

1.2. Institutional and Ad hoc Arbitration

Institutional and Ad Hoc Arbitration