Professor: Atty. Albert R.

Palacios

Transcribers:
Marc Roby de Chavez (MARX)
 ALTERNATIVE DISPUTE RESOLUTION reviewer by MARX
ADR2
A and B entered into a contract were it was stipulated that in
the event of a dispute arising in that contract they are going
to refer the case to the RTC in manila, will that document be a
subject of an ADR?
No
So, if they stipulate that it can be solve by the RTC of Manila
thru an ADR, will it be alright?
No, because the dispute covered by the ADR is to be
rd
resolve by an impartial 3 party who is not a judge
rd
and such 3 party is not an agent of the government
as well. So if it is the court that resolves the dispute,
such resolution is excluded in the ADR.
Does the constitution favor that the parties can go an ADR
among themselves? What does the Constitution provides?
Art XIII, Sec. 3 par. 3 of the Constitution provides
that The State shall promote the principle of shared
responsibility between workers and employers and
the preferential use of voluntary modes in settling
disputes, including conciliation, and shall enforce
their mutual compliance therewith to foster
industrial peace.
The employers and employees are encouraged to go ADR
under the Constitution for the purpose of obtaining industrial
peace.
How about in the Civil Code, what does Article 1306 provides?
Does it encourage the parties to go to ADR?
What can the parties provide? Can they have a clause or
provision?
The Civil Code provides as well that the parties may
provide clauses or provisions in their contract to
encourage to come into an outside settlement of
their dispute for as long as it is not against the law.
Who are these parties referred to under the Civil Code?
Debtor-creditor in the event of an obligation
Obligor-obligee in the event of a contract
Under the ADR, who is supposed to provide the services of an
ADR?
ADR provider
Who are the people who are supposed to practice them?
ADR practitioners
How would we consider a party who is designated as an ADR
provider? Is it an ordinary person who provide an ADR service
or there is an appointment of that person? Who is an ADR
1
provider? What is the distinction between an ADR provider
and ADR practitioner?
ADR providers are institutions accredited by the
government to provide ADR services for an ADR. Like
in QC.
Are the practitioners a part of the providers? Are there
practitioners who were provided by ADR providers?
The parties or the institution themselves may
provide the practitioners.
If there is an institution that provides ADR, can the parties go
there and obtain a settlement?
Yes
Once they obtain a settlement, what can the parties do to
complement the functions of the provider? Can they
recommend for accreditation their own arbitrators?
Yes, they can recommend for accreditation their
own arbitrators
Thru what means is an ADR implements?
• Arbitration
• Mediation/Conciliation
• Mini-trial
• Early Neutral Valuation
Who determines the use of these particular means when the
parties decide to go to an alternative dispute resolution?
The parties can implement the kind of dispute
resolution that they would like to avail of.
If they have elected, let say arbitration, is it necessary for the
parties to agree to the arbitrator that will be the one to
resolve the dispute?
Yes
What is the most important ingredient of the kind of
availment of the means of arbitration?
Agreement of parties
Can there be an appointment of arbitrator or conciliator of
the parties having disagreed to it?
None
Can the court come in to appoint an arbitrator or conciliator?
No
As a rule, who creates an appointment of arbitrators and
conciliators?
The parties, the consent of the parties are of primary
importance when it comes to arbitration or
conciliation, because without such consent, the
parties are not bound by the acts of an arbitrator or
 ALTERNATIVE DISPUTE RESOLUTION reviewer by MARX
conciliator, neither will the court respect if the
parties did not elect thru their consent the
appointment of arbitrators or conciliators.
Parties A and B are heirs of X, they agreed in their contract
that both of them shall have equal division of the properties
that they will inherit from X. after they have signed the
contract, B refuses to respect that contract because he argue
that he should receive more than A. As a consequence of a
dispute the parties went to arbitration or conciliation. Is that
possible?
No, because section 6 provides Exceptions to the
Application of ADR. Future legitime cannot be a
subject of ADR despite the fact the parties agreed.
What are the other exceptions?
a) labor disputes covered by the Labor Code
b) the civil status of persons;
c) the validity of a marriage;
d) any ground for legal separation;
e) the jurisdiction of courts;
f) future legitime;
g) criminal liability; and
h) Those which by law cannot be compromised.
What is the difference between Arbitration and Mediation?
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
Mediation means a voluntary process in which a
mediator, selected by the disputing parties,
facilitates communication and negotiation, and
assist the parties in reaching a voluntary agreement
regarding a dispute.
In mediation/conciliation the third person merely
facilitate and assist the disputing parties to
communicate and negotiate. The
mediator/conciliator merely brings the parties
together to come to an agreement while in
Arbitration, the arbitrator acts as a judge where he
can receive evidence and render an award.
If the parties elected to go to arbitration, how many
arbitrators they opt to have?
One or more
If the parties elected to go to mediation, how many mediators
they opt to have?
Only one
2
Is there a possibility that whatever settlement there is
between the parties in mediation/conciliation an award
would come out?
Yes, the parties may agree in the settlement
agreement that the mediator shall become a sole
arbitrator for the dispute and shall treat the
settlement agreement as an arbitral award which
shall be subject to enforcement under Arbitration
Law. A mediator cannot render an award but the
parties may agree that they shall treat the
settlement agreement as an arbitral award.
In mediation, after the parties reached to an
agreement, agree now that their settlement
agreement be considered as an award.
What is the advantage of converting a settlement agreement
to an award?
If there was a conversion, such converted award will
be a subject of execution, because a settlement
agreement cannot be enforced unless it was
converted to an award and become a subject for
execution.
If there is an award as a consequence of the agreement of the
parties in making their settlement agreement into an award,
if one party do not agree to enforce the award, the other
party may go to court and file a petition for execution of the
award.
The mediator will advise the parties to convert the settlement
agreement to an award
There is a court proceeding between A and B, the issue in
that particular case is an accounting of claim of A to B, the
accounting will depend on the ___ of what is determined
from a volume of accounting records, can the court direct the
parties to go to an ADR, in order to determine whether that
the particular claim of A is true with respect to the true
amount that A owe to B?
Yes, if the court is having difficulty in determining
the actual amount which A owes B and that will
mean accounting, it is called "Court-Annexed
Mediation".
When can a court do that (Court-Annexed Mediation)?
Once it has obtain jurisdiction over the case and of
the parties, then the court can direct the parties to
go to mediation to an annex court
Who is going to be the mediator in that situation?
Judge of an annex court
Can a judge be a mediator in that case?
Yes, as long as the judge is not the same judge to
which the case was first filed and the court in which
 ALTERNATIVE DISPUTE RESOLUTION reviewer by MARX
the judge sits belongs in the same category or of
equal level
Let say there are 2 RTCs, one is the court where the complaint
is filed, can this court now direct the order court to conduct
mediation?
Yes, provided that the annex court belong in the
same category
Purpose of a court-annex mediation (to unclog the docket of
the court)
• To shorten the proceedings
• To help in the evaluation of elements
• To bring the parties to settlement
A and B enter into an agreement that in the event of a
dispute they will resolve it thru arbitration. There was a
breach of obligation in that contract, and A now, filed an
action in court against B, during the hearing B did not present
the document containing the agreement that they will go to
arbitration, and in the course of the proceeding the court
found out the existence of an arbitration clause in the
agreement, what will the court do if it knew the existence of
that agreement?
• The court will suspend the proceedings
• And direct the parties to go to ADR on the basis of
their contract or agreement
• After the ADR proceedings, and rendering an award,
the arbitrator will refer the award to the court for
the parties to comply
Such situation is called Court-Referred Mediation
Court-Referred Mediation means mediation ordered by a
court to be conducted in accordance with the Agreement of
the Parties when as action is prematurely commenced in
violation of such agreement
The court accepts the case, the court may not be aware of
the fact that the parties had previously agreed to go to
mediation, in the course of the hearing, the court discovered
that there is a arbitration clause in the agreement by the
parties, the court can refer the parties to arbitration with the
consent of such parties pursuant to their agreement.
During the court-referred mediation/arbitration, the parties
presented their evidence to the arbitrator and as a
consequence of the presentation of that evidence, there is an
award. After the award was rendered and such award was
referred to the court, one of the parties questioned the
validity of the award. Can the party asked the court to allow
him to present additional evidence apart from the evidence
they have presented?
Yes, because the court has still jurisdiction, if court
found out that there was irregularity in the rendition
3
of the award, the court may allow the party-
applicant to present evidences apart from the
previous evidences presented.
In a separate case that existed between A and B, who has a
case in that court that directed them to go to arbitration,
they needed evidence as well in that separate case involving
other issues, can any of these parties serve a request for
discovery (mode of discovery)? Can anyone of the parties file
a petition to take deposition of any of the parties with respect
to the testimony they have given before the arbitrator/during
arbitration proceedings
No, they are considered confidential
How about the records presented by the parties as
documentary exhibits in that arbitration?
It is included as confidential
How about the pleadings?
It is included as confidential
Those testimonies, records and pleadings in the arbitration
proceedings cannot be used in a separate proceeding
Is there an exception?
Yes, if the parties agreed to waive the confidentiality
of the evidence presented.
Who are the parties that will agree?
The disputing parties, the non-participating party in
connection of the information is provided by such
nonparty participant.
SEC. 11. Exceptions to Privilege. -
(a) There is no privilege against disclosure under Section
9 if mediation communication is:
(1) in an agreement evidenced by a record
authenticated by all parties to the
agreement;
(2) available to the public or that is made
during a session of a mediation which is
open, or is required by law to be open, to
the public;
(3) a threat or statement of a plan to inflict
bodily injury or commit a crime of violence;
(4) internationally used to plan a crime,
attempt to commit, or commit a crime, or
conceal an ongoing crime or criminal
activity;
(5) sought or offered to prove or disprove
abuse, neglect, abandonment, or
exploitation in a proceeding in which a
public agency is protecting the interest of
an individual protected by law; but this
 ALTERNATIVE DISPUTE RESOLUTION reviewer by MARX
exception does not apply where a child
protection matter is referred to mediation
by a court or a public agency participates in
the child protection mediation;
(6) sought or offered to prove or disprove a
claim or complaint of professional
misconduct or malpractice filed against
mediator in a proceeding; or
(7) sought or offered to prove or disprove a
claim of complaint of professional
misconduct of malpractice filed against a
party, nonparty participant, or
representative of a party based on conduct
occurring during a mediation.
(b) There is no privilege under Section 9 if a court or
administrative agency, finds, after a hearing in
camera, that the party seeking discovery of the
proponent of the evidence has shown that the
evidence is not otherwise available, that there is a
need for the evidence that substantially outweighs
the interest in protecting confidentiality, and the
mediation communication is sought or offered in:
(1) a court proceeding involving a crime or
felony; or
(2) a proceeding to prove a claim or defense
that under the law is sufficient to reform or
avoid a liability on a contract arising out of
the mediation.
(c) A mediator may not be compelled to provide
evidence of a mediation communication or testify in
such proceeding.
(d) If a mediation communication is not privileged under
an exception in subsection (a) or (b), only the
portion of the communication necessary for the
application of the exception for nondisclosure may
be admitted. The admission of particular evidence
for the limited purpose of an exception does not
render that evidence, or any other mediation
communication, admissible for any other purpose.
Suppose an information was given in a mediation by the non-
participating party (witness) who testified in that proceedings
done in public, suppose there was an objection on the part of
the parties against the opening of the evidence the public but
the non-participating party waived that evidence and the
privilege of communication, is that proper waiver?
Yes, the evidence presented by the non-participating
party can be waived as evidence
Can the parties agree to appoint their own lawyer during the
mediation proceedings?
Yes, both of them can appoint
4
Is there any qualification for the participation of the lawyer
during the mediation or arbitration?
If there is no prohibition or limitation imposed by
the parties to the lawyers, the lawyers can act for
the interest of his client in the same way he would
act in a civil case.
If there is mediation, and the parties were persuaded by the
mediator to conclude and settle the case, who is going to
prepare the settlement agreement?
A settlement agreement following successful
mediation shall be prepared by the parties with the
assistance of their respective counsel, if any, and by
the mediator.
What should be stated in that settlement?
The parties and their respective counsels, if any,
shall sign the settlement agreement. The mediator
shall certify that he/she explained the contents of
the settlement agreement to the parties in a
language known to them.
Duty of the mediator/conciliator
To certify that he/she explained the contents of the
settlement agreement to the parties in a language
known to them.
ADR3
Is there a difference between early neutral evaluation and
mini-trial?
• Early Neutral Evaluation means an ADR process
wherein parties and their lawyers are brought
together early in a pre-trial phase to present
summaries of their cases and receive a nonbinding
assessment by an experienced, neutral person, with
expertise in the subject in the substance of the
dispute
• Mini-Trial means a structured dispute resolution
method in which the merits of a case are argued
before a panel comprising senior decision makers
with or without the presence of a neutral third
person after which the parties seek a negotiated
settlement
The difference lies is in ENE, there is a nonbinding
assessment while in MT there is a negotiated settlement.
The resolution in ENE is not binding upon parties.
What is the purpose of the nonbinding assessment?
A guide for the parties not to proceed anymore with
the case in court
In the case of Mini Trial, the resolution is binding upon parties
and it is enforceable upon them. Both parties requested and
the mini trial is conducted, then it may result to negotiated
 ALTERNATIVE DISPUTE RESOLUTION reviewer by MARX
settlement. The parties will negotiate on the basis of advice
given to them or on the basis of the decision of the experts
In ENE, the resolution is merely an advice, the parties may
take such resolution or not, hence, not binding, in mini trial, it
is a decision and from that decision the parties are compelled
to go a mediated agreement, it will result in the termination
of the mediation, hence, binding.
The parties agreed in a settlement between them in writing,
that they will submit their dispute to a mediation, but they
have filed a case in court, then the court saw the agreement
of the parties, can the court motu propio direct the court for
mediation?
No, because the court has no basis in doing so. The
parties must invoke first the mediation agreement.
Failure to invoke such mediation agreement it will
deemed a waiver of such mediation agreement.
The parties can directly ask the court to direct them to go to
mediation as they have agreed upon on or before the pre-
trial conference. With request of the parties, the court now is
justified in directing them to go to mediation or arbitration on
the basis of the request of the parties in their agreement. If
there is a waiver of such agreement, the parties jointly may
revive such agreement by requesting to the court to direct
them to mediation or arbitration. It is also known as Court-
Referred Mediation
Court-Referred Mediation means mediation ordered by a
court to be conducted in accordance with the Agreement of
the Parties when as action is prematurely commenced in
violation of such agreement;
The invocation of the mediation agreement must be done on
or before pre-trial conference, failure to timely invoke results
to a waiver, but such waiver may be revived during the pre-
(Comment: in arbitration the parties may revive their agreement even after the pre-
trial.
trial provided that the parties jointly requested for it, will it be applicable to mediation?)
The information that is gathered in mediation is confidential
and privilege, meaning to say it cannot be a subject of
disclosure.
What are the 2 modes of disclosure in this case?
• Discovery- Modes of Discovery
o Depositions either oral or written
o Request for admission
• Presentation of records and testimonies
Who are the persons affected by this privilege?
(1) the parties to the dispute;
(2) the mediator or mediators;
(3) the counsel for the parties;
(4) the nonparty participants;
5
(5) any persons hired or engaged in connection with the
mediation as secretary, stenographer, clerk or
assistant; and
(6) any other person who obtains or possesses
confidential information by reason of his/her
profession.
Suppose a lawyer of one of the mediating parties, who
negligently left his attaché in a table which contains the
records of the case, such attaché was taken by a hotel boy or
attendant, he opened such attaché and learned a lot of things
from the records, then such attendant ask a journalist to
publish what he had known, is the attendant covered?
No, the disqualification provided for by law refers to
acquisition of the knowledge thru an exercise of one
profession in relation to mediation proceedings
Can the parties waived the confidentiality or the privilege
attach to the information acquired in mediation?
Yes.
Under what situation that they can waive the privilege?
If one party discloses such information to the court
Who can waived this confidentiality or privilege?
• The parties in dispute
• Mediator
• Non-party participants
Suppose a lawyer of one of the parties who participated in the
mediation proceedings, submit to the court during the court
proceedings a documents or exhibit gathered in mediation
proceedings but there was a timely objection by the other
party contending that it cannot be submitted because it is a
record coming from the mediation proceedings hence
confidential and privilege, is the court confined to sustain such
objection?
Yes
When is a document or exhibits be considered as a part of the
records that is affected by the confidentiality or privilege?
When there is no objection on the part of the other
party, which is deemed a waiver
If an evidence is acquired during mediation, and such
evidence will be made to apply to inflict injury to someone
else, is that evidence covered by the confidentiality?
No
If an evidence falls under the exceptions provided for by law,
there is no need for timely objection. It automatically forms
part of the evidence or record and cannot be excluded by the
confidentiality
 ALTERNATIVE DISPUTE RESOLUTION reviewer by MARX
(1) in an agreement evidenced by a record
authenticated by all parties to the agreement;
(2) available to the public or that is made during a
session of a mediation which is open, or is required
by law to be open, to the public;
(3) a threat or statement of a plan to inflict bodily injury
or commit a crime of violence;
(4) internationally used to plan a crime, attempt to
commit, or commit a crime, or conceal an ongoing
crime or criminal activity;
(5) sought or offered to prove or disprove abuse,
neglect, abandonment, or exploitation in a
proceeding in which a public agency is protecting the
interest of an individual protected by law; but this
exception does not apply where a child protection
matter is referred to mediation by a court or a public
agency participates in the child protection
mediation;
(6) sought or offered to prove or disprove a claim or
complaint of professional misconduct or malpractice
filed against mediator in a proceeding; or
(7) sought or offered to prove or disprove a claim of
complaint of professional misconduct of malpractice
filed against a party, nonparty participant, or
representative of a party based on conduct occurring
during a mediation.
There is an on-going mediation proceedings, as a
consequence of that proceedings, a party filed a case in court
which involve the same issue, same parties that is the subject
of mediation. Then the parties subpoenaed the mediator as a
witness to testify about the mediation proceedings, can the
mediator testify?
No
Can the mediator voluntarily testify?
No, because such situation will violate the rules on
confidentiality
If a party has been prejudiced in that situation, the recourse
will be an objection as to the presentation of evidence that is
privilege
Suppose the court did not sustain the objection, and allow the
mediator to continue his testimony, what will be the party’s
recourse?
• The court may allow the party the right to respond
and repudiate whatever testimony that was given by
the mediator (right to rebut or counter-testimony)
• File an action for damages
Suppose in the course of giving of testimony of the mediator,
the adverse party objected, the objection was sustained, but
the other party objected to the act of sustaining the objection
of the other party on the ground that the mediator should be
allowed to continue because he does not understand what is
6
the consequence of that statement of the mediator which
was unfinished, if u were the judge, will u allow the mediator
to continue his testimony?
I will allow the continuation of the testimony for the
purpose of complete understanding of the
previously disclosed communication given by the
mediator.
The mediator cannot be subpoenaed to bring the records of
the mediation proceedings
The neither of the parties can be subpoenaed to bring the
records of the proceedings
The nonparty participants cannot be subpoenaed to bring
the records of the proceedings
The parties agreed to appoint a mediator, what should the
mediator suppose to do?
Before accepting a mediation, an individual who is
requested to serve as a mediator shall:
(1) make an inquiry that is reasonable under the
circumstances to determinate whether there
are any known facts that a reasonable individual
would consider likely to affect the impartiality of
the mediator, including a financial or personal
interest in the outcome of the mediation and
any existing or past relationship with a party or
foreseeable participant in the mediation; and
(2) disclosure to the mediation parties any such fact
known or learned as soon as is practical before
accepting a mediation.
Suppose that the proposed mediator did not disclose any of
the matters that he is supposed to disclose, and as a
consequence of that, he was appointed as a mediator,
immediately the parties knew such failure to disclose in the
middle of the mediation proceedings, what can the party do?
The party can remove the mediator and substitute
another one
Failure of the party to remove the mediator means there is a
waiver
Can the parties ask the mediator to establish his
qualification?
At the request of a mediation party, an individual
who is requested to serve as mediator shall disclose
his/her qualifications to mediate a dispute.
Who should determine the qualifications of the mediator?
The parties on their agreement
 ALTERNATIVE DISPUTE RESOLUTION reviewer by MARX

Suppose the mediation has been agreed upon by the parties
to settle their dispute by a mediator, what is the job of the
mediator in the proceedings?
To facilitate the communication and negotiation of
the parties
In the midst of mediation could the mediator be removing as
a consequence of his acts being impartial to one of the
parties?
He can be removed
petition, in accordance with such rules of procedure
as may be promulgated by the Supreme Court.
ADR4
What will be the ground of the parties for the enforcement of
the mediation settlement?
Failure to comply with such mediation settlement
will give the right to the parties to go to court for the
enforcement of that mediation settlement.

Supposing that even there is a ground of impartiality but the

parties continue the proceedings, can the parties remove the DIFFERENCE BETWEEN ARBITRATION AND MEDIATION
mediator?
No, the parties deemed waived that ground of Mediation Arbitration
impartiality Resolution Mediation settlement- Arbitral award
As a rule a mediator
Where should be the place of mediation? cannot make an award
The parties are free to agree on the place of but the mediation
mediation. Failing such agreement, the place of settlement can be an
mediation shall be any place convenient and award provided that it
appropriate to all parties. is reduced into writing
signed by the parties
Who will prepare the mediation settlement? and their counsel and
A settlement agreement following successful the mediator. Such
mediation shall be prepared by the parties with the mediation agreement
assistance of their respective counsel, if any, and by can be an award when
the mediator. there is a failure of the
parties to comply with
Who should sign the mediation settlement? the mediation
The parties and their respective counsels, if any, settlement. Such
shall sign the settlement agreement. failure to comply with
such mediation
What should the certification of the mediator contain? settlement will give the
The mediator shall certify that he/she explained the right to the parties to
contents of the settlement agreement to the parties go to court for the
in a language known to them. enforcement of that
mediation settlement.
In the absence of certification, would there be a completed
mediation settlement? Appointment Appointed by the Appointed by the
None of ADR parties parties, when the
practioners situation falls to
Is the absence of the signature of the mediator in mediation an agreement that
settlement invalidates such mediation settlement? only one
No, for as long as the parties signed the mediation arbitrator to settle
settlement. their dispute, but
in case where the
What should the parties do with the mediation settlement? parties agrees to
If the parties so desire, they may deposit such appoint each
settlement agreement with the appropriate Clerk of arbitrator of their
a Regional Trial Court of the place where one of the own choice, then
parties resides. Where there is a need to enforce the the 2 appointed
settlement agreement, a petition may be filed by arbitrator will
rd
any of the parties with the same court, in which appoint he 3
case, the court shall proceed summarily to hear the arbitrator
7
 ALTERNATIVE DISPUTE RESOLUTION reviewer by MARX

Number of Only 1 1 or more, Suppose A and B executed a contract, wherein B admitted

ADR normally the that he owes A 5000php, there is a failure to pay A. A would
practitioners maximum is 3 want to go to arbitration on the basis of that agreement
arbitrators where B admitted that that latter owes the former. Could that
Intervention There is no need for The court has to be a subject of arbitration?
of the court the affirmation of the affirm the arbitral No, because there was no actual controversy, there
court award are no conflicting claims between the parties

Elements of Arbitration In that case, B denies that he owes A, is that a subject of

• The parties have mutually agreed to submit their
dispute to selected persons whose determination is
to be accepted as a substitute for the judgment of a
court
• There is an actual dispute or matter in controversy
• The dispute or matter in controversy is capable of
being referred to arbitration
The parties agreed to go to arbitration in their contract in the
event that a dispute would arise between them, there is that
particular clause in the agreement of the parties to go to
arbitration, what do u call that clause?
Arbitration Clause
Upon the rise of the dispute the arbitration clause becomes
enforceable. The parties can invoke the arbitration clause
upon the existence of the dispute arising from their contract.
Suppose there a dispute already between the parties, and
they agreed to go to arbitration, is there a need for them to
draft contract an arbitration clause so that they can go to
arbitration?
No need, the parties may submit to the arbitration
of one or more arbitrators any controversy existing
between them at the time of the submission and
which may be the subject of an action. It is called
submission agreement
arbitration?
Yes, because there is now a conflicting sides
What are the disputes that cannot be arbitrated?
(a) labor disputes Labor Code
(b) the civil status of persons;
(c) the validity of a marriage;
(d) any ground for legal separation;
(e) the jurisdiction of courts;
(f) future legitime;
(g) criminal liability; and
(h) those which by law cannot be compromised.
The elements required in arbitration are also required in
mediation but the difference lies in their procedure.
A and B agreed to go to arbitration, and they have that
arbitration clause in their contract. Under the arbitration
clause, it was stipulated that they will settle their dispute only
thru arbitration and nothing else. Is that a valid stipulation?
No, such stipulation that the dispute will be resolve
thru arbitration only is against public policy. Such
stipulation will deprive the court to inquire in such
issue on questions of law arising from the questions
of facts.
Wahl vs Donaldon

Submission agreement is when the parties immediately
submit in writing their dispute to arbitration that particular
issue between them had arisen already.
Arbitration clause refers to future controversies arising from
the contract they executed.
A contract to arbitrate a controversy thereafter arising
between the parties, as well as a submission to arbitrate an
existing controversy shall be in writing and subscribed by the
party sought to be charged, or by his lawful agent.
What should have the particular character that has arisen
between parties?
It must an actual controversy between the parties
arising from a previous contract or relation between
them.
8
Facts: Wahl and Donald Sims Co. entered in a lease contract
whereby Wahl leased to Donaldon, Sins Co. a certain ship for
the term of six months, under which contract the Wahl
claimed that Donaldon Sims Co. were indebted to them a
balance of a certain sum in money.
Suit was instituted but the defendants failed to
answer the complaint. A judgment was rendered by default
against the defendants in favor of the plaintiffs.
The defendants made an application to the Court of
First Instance for a new trial. Motion for a new trial was
granted by the Court of First Instance, and the judgment by
default against the defendants was set aside. After the
granting of the motion for a new trial a demurrer was made
by the defendants to the complaint which presented the
question of the competency of the Court of First Instance to
try the case. The objection was based upon the grounds that
there was a provision contained in the contract that should
arise any difference of opinion between the parties to the
 ALTERNATIVE DISPUTE RESOLUTION reviewer by MARX
contract, whether it may be with reference to the principal
matter or in any detail, this difference shall be referred for
arbitration.
Issue: whether a provision of this character is invalid as being
against public policy.
Held: where there is a stipulation that all matters in dispute
are to be referred to arbitrators and to them alone, such
stipulation is contrary to public policy because it is attempted
to prevent any right of action accruing at all.
Agreements to refer matters in dispute to arbitration
alone have been regarded generally as attempts to oust the
jurisdiction of the court, and are not enforced.
We reach the conclusion that the Court of First
Instance should have entertained jurisdiction in this case,
notwithstanding the clause providing for arbitration above
referred to.
The application of the defendants, upon which the
judgment was set aside, appears to be defective and not
sufficient to have justified the setting aside of the judgment
by default.
After the application to set aside the judgment had
been granted, instead of presenting this defense, a demurrer
is presented to the petition, based upon the purely technical
grounds that under the contract the parties had agreed to
settle the matters in dispute by arbitration at Hongkong. If
the answer had been prepared by the defendants and
presented to the Court of First Instance at the time of the
granting of the order, the Court of First Instance must have
concluded that the defense was based upon a technicality
and the application must have been overruled. But, as stated
before, this view is not concurred in by the majority of the
court.
Chang vs Royal Exchange
Facts: Chang insured his property against fire to Royal
Exchange. The property insured was destroyed by fire. Chang
notified the agent of the Assurance Company of the loss but
the company informed Chang that the proof was insufficient.
A number of interviews about the loss but still the Company
refused to pay the loss and it didn’t gave any indication as to
what other proofs should be furnished. On one of the
interview, it offered to settle a claim for an amount of 3k but
such offer was refused. In the final interview the agent of the
company that it cannot go on to the case anymore which led
to the plaintiff to commenced an action without seeking to
arbitration. The assurance company requested in writing to
settle the case thru arbitration in accordance with the terms
and conditions.
The arbitration in the contract says that: in case of
disagreement arising between the corporation and the
assured (unless the corporation shall deny liability by reason
9
of fraud or breach of any of the conditions or because the
claimant has by some other means waived his rights under
the policy) shall be referred to arbitration of some person to
be selected by agreement of both parties….
Issue: whether there has been such waiver of arbitration or
not
Held: the plaintiffs were fully justified in bringing the action
at once, without seeking any arbitration because the
assurance company had waived the arbitration when the
agent of the assured company said on its final interview that
it could go no further with the case. It was a sufficient
evidence to show that it did not intend to pay.
The mere silence of the company would not amount
to a waiver of its right to insist upon the condition of
arbitration but when it placed its determination upon the
grounds stated in the correspondence, which were such as
could not be submitted to arbitration under the provisions of
the policy, it must be held to have waived the condition
requiring arbitration and especially is this so where the
assured would be misled to their prejudice into bringing suit
upon the policy without first having obtained an award.
Chan Linte vs Law Union
Facts: Chan Linte insured 30,992.5 kilos of hemp against fire
to Law Union. The property insured was destroyed by fire.
Chan Linte notified Law Union about he loss but the
insurance company refused to pay Chan linte which led to a
commencement of an action against the insurance company.
insurance company requested that its liability should be
submitted to arbitration, in accord with the provisions of the
policy, and that " Chan Linte acceded to the requirement
made by said defendant as aforesaid, but not that the award
of arbitration should be conclusive or final, or deprive the
courts of jurisdiction, and by agreement of both Chan Linte
and Law Union Frank B. Ingersoll was named sole arbitrator,
and both parties informally presented evidence before him
and he made return of arbitration to the effect that said Chan
Linte had only seven bales of hemp destroyed in the fire of
April 10, 1918, as hereinbefore set forth, with which return
the said plaintiff is dissatisfied, and comes to this court for
proper action.
Law Union in its answer alleges that claiming a loss under the
policy, the plaintiff made a claim against the defendant for
P5,000, that a difference arose between them as to the
amount of the alleged loss, and that, under the terms of the
policy, an arbitrator was agreed upon and selected by the
mutual consent of both parties, for the purpose of deciding
the alleged difference; that on December 28, 1918, the
arbitrator found that only seven bales of hemp of the grade
"ovillo" were destroyed. In its supplemental answer, it alleges
that on July 8, 1919, the arbitrator filed a supplemental
report and award wherein he finds from the evidence
 ALTERNATIVE DISPUTE RESOLUTION reviewer by MARX
submitted that the local value of the seven bales of plaintiff's
hemp destroyed by fire on April 10, 1918, was P608.34; that
in addition to the defendant's policy, the same property was
covered by two other fire insurance polices, by each of which
the property in question was insured to the value of P5,000
against the loss; that defendant has offered and is now willing
to pay plaintiff its one-third of the loss in full satisfaction of its
liability. The other insurance companies are Tokyo Marine
Insurance Co., Ltd., and the Chine Fire Insurance Co., Ltd.,
The trial court rendered a decision in favor of the Insurance
companies that any liability arising out of the fire should be
borne by the defendants in equal parts; that each of them has
offered in writing to pay the plaintiff its one-third of the
amount of the plaintiff's loss, as ascertained by the arbitrator.
In this case, The plaintiff contends; First, that the arbitration
clauses are null and void as against public policy; second, that
the award of the arbitrator of December 28, 1918, without
finding the value of the property destroyed, was final, and
that on July 8, 1919, he had no authority to make a
supplemental finding as to the value of the property; and,
third, that upon the evidence the court should have found for
the plaintiff.
Issue:
Whether the award of the arbitrator of December 28, 1918,
without finding the value of the property destroyed, was final
Whether he had no authority to make a supplemental finding
as to the value of the property
Held: Hence the award on the question submitted was not
complete or final. In the finding of the actual value of the
hemp, there was no change or revision of any previous
finding. It was simply the completion by the arbitrator of an
unfinished work. No formal notice was served on the
arbitrator, and he was not removed or discharged, and until
such time as his duties were fully performed, or he was
discharged, he would have the legal right to complete his
award. The plaintiff, having agreed to arbitration after the
action was commenced and submitted his proof to the
arbitrator, in the absence of fraud or mistake, is estopped
and bound by the award. Where a plaintiff has commenced
an action to recover upon an insurance policy, and then
voluntarily submits the amount of his loss to arbitration, he
cannot ignore or nullify the award and treat it as void upon
the ground that he is dissatisfied with the decision.
Freedom to contract for arbitration to this extent, imports no
invasion of the province of the courts, and there is no ground
upon which a right so essential to the convenient transaction
of modern business affairs can be denied," nor is such
agreement objectionable as being against public policy. In
order to give effect to such an agreement it must of course
appear that the matter proposed to be referred is a
difference, within the meaning of the agreement.
10
Discussion: there is nothing wrong when the parties go first
to arbitration (condition precedent) before the can go to
court. The SC recognizes the right of the parties to obtain an
arbitral award before enforcing it to court in the event that if
one of the parties failed to respect the arbitral award.
Arbitration is considered as a mode of settling a dispute.
What are the advantages of going to an ADR?
• Convenience
• Less expensive
• The ADR practioners are experts in technical matter
as compare to judges of court who have less
knowledge in the technical know-how to resolve
economic and technical issues
• There is privacy in settling the dispute as compare to
going to court whereby it is open to the public
• In ADR, it prevents rupture of relationship between
parties as compare to courts where the environment
of having lawyers and judges tends to rupture the
relationship between parties
In ADR, such proceedings are not bound by the strict Rules of
Court specifically exclusionary rules of evidence. The basis of
the resolution or judgment provided by the ADR practioners
is on the ground of equity, fairness and justice.
Suppose the ADR practitioners committed a serious legal error
in his judgment, what is the remedy of the parties?
The parties are allowed to appeal in cases of legal
errors submitted by the ADR practitioner
When we speak of commercial arbitration, what particular
aspect are we referring?
An arbitration is "commercial" if it covers matters
arising from all relationships of a commercial nature,
whether contractual or not.
If a business transaction dispute was submitted to arbitration
there will economic consequences
Relationships of a transactions extends to:
• any trade transaction for the supply or exchange of
goods or services;
• distribution agreements;
• construction of works;
• commercial representation or agency;
• factoring;
• leasing,
• consulting;
• engineering;
• licensing;
• investment;
• financing;
• banking;
 ALTERNATIVE DISPUTE RESOLUTION reviewer by MARX
• insurance;
• joint venture
• other forms of industrial or business cooperation;
• carriage of goods or passengers by air, sea, rail or
road.
What law will govern in cases of International Commercial
Arbitration?
Model Law on International Commercial Arbitration
(the "Model Law") adopted by the United Nations
Commission on International Trade Law
What law will govern in Domestic Arbitration?
Republic Act 876
If there is deficiency in Republic Act 876, such deficiency may
be referred to the Model law
In international arbitration conducted in the Philippines, a
party may be represented by any person of his choice.
Provided, that such representative, unless admitted to the
practice of law in the Philippines, shall not be authorized to
appear as counsel in any Philippine court, or any other quasi-
judicial body whether or not such appearance is in relation to
the arbitration in which he appears.
ADR5
A and B entered into an agreement to have their dispute
arbitrated and they agreed that all their arbitrators are going
to come from abroad. All arbitrators, that the venue agreed is
in the Philippines. Each of them selected 1 arbitrator each and
the 2 selected arbitrators selected another foreign arbitrator.
In the course of the arbitration, the parties also obtain
lawyers from abroad to represent them. Can those lawyers
appear in the arbitration proceedings in representation of the
parties?
Yes
Can they (foreign Lawyers) present evidence? Can they submit
arguments in arbitration?
They can only represent but not appear as counsel.
They can only represent but they cannot act as a
lawyer because the nature of arbitration
proceedings is a quasi-judicial body. Foreign lawyers
who are not member of the Philippine Bar are not
allowed to appear.
Suppose during the presentation of evidence, the lawyers
participated and no one objects, are their acts considered
legitimate?
If there are no timely objections they are allowed to
appear because there is a waiver of that objection.
If the parties agreed to appoint foreign arbitrators who are
lawyers at the same time and not members of the Philippine
Bar, can those lawyers-arbitrators appear in arbitration
11
proceedings who are lawyers but not member of the
Philippine Bar?
Yes, there is no prohibition, because they are not
acting as lawyers they are acting as arbitrators. A
foreign arbitrator is allowed in our arbitration
proceedings, foreign arbitrators are allowed, but
they cannot act as lawyers.
The timely objection must be raised when a foreigner
appearing as a lawyer in an arbitration proceeding or in any
quasi-judicial hearing as well as judicial hearing. The reason
why they are allowed to continue acting as lawyers even not
a member of a Philippine Bar if there is no timely objection is
because of the waiver of that ground.
Failure to object on the ground that he is disqualified to act
as a lawyer not being a member of the Philippine Bar
behooves that ground to object and that justifies his
appearance in court.
But it is different to arbitrators, even if they are lawyers of
foreign ancestry and not being a member of the Philippine
Bar because arbitrators are not acting as lawyers, they act as
judges in a quasi-judicial proceeding.
Are information in the arbitration confidential?
Yes, they are confidential
What matters are covered by these confidential matters
during arbitrations?
records, evidence presented and the arbitral award
Can they be waived?
Yes, with the consent of the parties, or for the
limited purpose of disclosing to the court of relevant
documents in cases where resort to the court is
allowed herein.
How can the parties consent?
If there is no objections in the disclosure or by
express consent of the parties during the hearing
Who can give their express consent?
• The parties themselves
• Arbitrators
• Non-participating party
• witnesses
How about the witnesses in the arbitration proceedings?
Suppose the parties presented evidence, the parties did not
object to the confidentiality, can the witnesses object?
Yes, because the witnesses are the party themselves.
The law does not distinguish.
 ALTERNATIVE DISPUTE RESOLUTION reviewer by MARX
In the course of presentation of evidence in arbitration
proceedings, what measure can the parties take to protect
the confidentiality of the records, evidence or the
proceedings?
Filing a petition or a motion for securing a protective
order from the court
Is the other party entitled to a notice of such petition or
motion?
Yes
Which court?
Regional Trial Court on the place where the parties
resides
If the one of the parties resides in Bicol and the other one
resides in Metro Manila, which of the 2 RTCs have jurisdiction
over that arbitration, what is the determining factor?
The deposit of the arbitration agreement confirms
the jurisdiction of the court. The clerk of court
receives the deposit and the parties confirm the
jurisdiction of that court.
The signing of the Arbitration agreement or submission to
arbitration in the place signifies the parties’ acceptance of the
jurisdiction of the court. The parties confirm that they accept
the jurisdiction by the deposit it to the clerk of court.
The significant acts of the parties acknowledging the
jurisdiction of the court:
• Where the parties reside
• The depositing to the clerk of court
For instance, one party resides in metro manila and other
party resides in Bulacan, we determine now which of the
court does the agreement was deposited by the parties, was
it deposited in the RTC of bulacan or was it deposited in the
RTC of metro manila where one of the parties reside. If that is
done, that will confer the jurisdiction of the arbitral tribunal
and that confers also the jurisdiction of the court. The
election of the deposit of the arbitration let say in RTC of
Metro Manila excludes the jurisdiction now of the RTC in
Bulacan because RTC of Manila acquired first the jurisdiction
over the arbitration agreement. So the deposit of the
agreement to the clerk of court in a particular RTC where one
of the party resides determines which court that will acquire
jurisdiction over the arbitration proceedings.
A party filed an application to the court having jurisdiction
over the arbitration for an interim order of protection, what
kind of protection does the court will provide on matters that
are mention in the proceedings or the evidence when it
concerns technical matters like medical formula which are
trade secrets of the parties?
An order prohibiting disclosure of what is contained
in those documents.
12
Suppose the testimonies that is presented before the judge
who is covered by the ___ agreement is necessary to resolve a
dispute in that court proceedings, can the court utilized that
information?
Yes, for the limited purpose of disclosing to the court
of relevant documents in cases where resort to the
court is allowed. In that particular case, the court
can issue an order for the production of certain
documents that will provide the non-disclosure of
the consent of the parties except for the court to
know the relevance of the contents of the
documents to the issue in the case.
What is the difference between arbitration clause and
submission to arbitration?
• Arbitration clause- future dispute that will arise from
their particular relation
• Submission to arbitration- present dispute
Suppose A and B executed a document to settle their future
disputes thru an arbitration agreement/clause, A disregard
the arbitration clause and filed a case against B, during the
presentation of evidence, the court then saw the arbitration
clause and ordered the parties to submit themselves to
arbitration, is the court correct?
No, the parties must invoke first the arbitration
clause
What should be the motion to be submitted in court?
Motion to suspend the court proceedings then the
court will direct the parties to go to arbitration
At what stage that motion be raised?
• if at least one party so requests not later that the
pre-trial conference
• upon the request of both parties thereafter, in other
words even after the pre-trial conference both
parties can go and ask the court to direct them to go
to arbitration because of the arbitration clause
If none of the parties invoke that arbitration clause, can the
court directly order them to go to arbitration?
No, because it is deemed waived. The consent to
arbitration is deemed waived.
If the court did waive without the consent of the parties, can
the parties object to the order of the court that direct them to
arbitration?
Yes, because the parties did not give their consent to
go to arbitration, the court is bound by that.
 ALTERNATIVE DISPUTE RESOLUTION reviewer by MARX
What if the court said “regardless of your consent, this court
direct the parties now to go to arbitration pursuant to the
arbitration clause” is there an abuse of discretion?
Yes, there is abuse of discretion. The parties can
object because arbitration is based on the express
consent of the parties. There is already a waiver of
that particular clause.
How about in submission to arbitration, is there a need for the
parties to expressly raise their consent that they should be
directed to go to arbitration?
No, because such submission to arbitration is their
express consent that they will submit themselves to
arbitration, there is no need for a movement or act
independently raised by the parties because the
document itself is their consent to arbitration.
How should the ADR act be interpreted?
In interpreting the Act, the court shall have due
regard to the policy of the law in favor of arbitration.
In other words, the court should favor arbitration.
What are the 3 three grounds for which referral to arbitration
should not be permitted?
when the arbitration clause is:
• null and void
• inoperative
• incapable of being performed
If an arbitration agreement is between a person of age and
the other who is a minor, is that arbitration operative?
Yes, provided that the minor is represented by his
legal guardian or guardian ad litem. Without such
guardian it will be inoperative.
When we speak of appointing authority under the ADR act,
what personality is referred here?
Natural persons and institutions. Appointing
Authority as used in the Model Law shall mean the
person or institution named in the arbitration
agreement as the appointing authority; or the
regular arbitration institution under whose rules the
arbitration is agreed to be conducted.
Institutions engaged in arbitration can appoint arbitrators
with the consent by the parties.
Natural persons who act as appointing authority are those
persons named by the parties as appointing authority in their
contract, they appoint arbitrators. In the absence of an
arbitrator or an arbitrator is disqualified, the appointing
authority appoints because the parties named as the
appointing authority in their contract.
13
What is the consequence when the arbitrator either de jure or
de facto did not perform his functions?
His mandates terminate/ his actions may be
withdrawn from the records or the parties may
request for his termination.
E.g when the de jure officer fails to perform his acts based to
the procedure in arbitration
De facto vs De jure
• De facto- a person who took over the arbitration
proceedings as arbitrator without an express
consent of the parties. If without objection by the
parties, the actions of the de facto arbitrator will be
sustain but if the parties objected to it his action will
be withdrawn.
• De jure- one who is legally appointed by the parties
If the parties did not agree to the actuation of a person acting
as arbitrator he is acting as de facto officer because the
parties did not agree to his actuation and therefore the
parties has to object to his actuation and as a consequence
the de facto officer must be removed as arbitrator, but if the
parties did not object at the proper time then they agreed to
validate the result of the acts of that particular arbitrator.
A and B appointed each arbitrator ion accordance with their
agreement and the 2 arbitrators appointed the third
arbitrator, when will be the arbitral tribunal be constituted?
The arbitral tribunal is deemed constituted when the
third arbitrator accepted the appointment with the
knowledge of the parties. The parties must receive
the acceptance by the third arbitrator, if not, the
arbitral tribunal is not deemed constituted.
Why is it necessary that the notice of acceptance is received
by the parties?
Because to give a chance to the parties to object to
rd
the appointment of the 3 arbitrator. Failure to
received a copy of that acceptance will mean that
the arbitral tribunal is not yet deemed constituted.
In comparison to mediation or conciliation, is there a
necessity for the parties have a notice of acceptance by the
mediators or conciliators before mediation?
None, because mediators facilitate the transfer of
communication and they do not render an award.
During the arbitration proceedings, one of the parties wanted
a court intervention to issue an interim measure of protection.
Then the party must file an application, what must be allege
in the application?
• Describing in appropriate detail the precise relief,
• The party against whom the relief is requested,
• The grounds for the relief,
 ALTERNATIVE DISPUTE RESOLUTION reviewer by MARX
• Evidence supporting the request.
Upon application of A of an interim measure of protection,
the court order party B to prohibit the disclosure of certain
documents that has been presented during the arbitration
proceedings, what should party B do about the order of the
court? Is the party against whom the interim measure is
ordered be entitled to a copy of that order?
The party against whom the interim measure is
ordered is entitled to a copy of such order and the
party is expected to obey such order because it is
binding upon him. If he does not comply with the
order shall be liable for all damages resulting from
noncompliance, including all expenses, and
reasonable attorney's fees, paid in obtaining the
order's judicial enforcement.
The arbitral tribunal can issue an interim measure of
protection provided that it is within its jurisdiction.
If the arbitral tribunal has jurisdiction to a particular case with
respect to the purpose in which a requests for an interim
measure of protection sought by the parties then it can issue
such interim measure of protection.
If the arbitral tribunal is operated in Manila, it cannot issue an
interim measure of protection for a performance of an act
outside Metro Manila, because it is beyond its jurisdiction. So
the parties must go to court. But if it is within the jurisdiction
of the arbitral tribunal then the parties should go first to the
arbitral tribunal and receive that interim protection.
An interim protection issued by the arbitral tribunal may be
corrected by the courts. If an arbitral tribunal issue an order
frustrating an act against party for which such interim
measure was issued, such party may present his objection in
a court which has jurisdiction in that arbitration proceedings.
In what form be the interim measure of protection be issued?
• preliminary injunction directed against a party,
• appointment of receivers or detention,
• preservation of property,
• inspection of property that is the subject of the
dispute in arbitration
If the party against whom the interim measure of protection
is to be issued is not a party in an arbitration proceeding, who
is going to issue the interim measure?
The courts. If the matter to be restrained is with
respect to an act of a third party/ who is not a party
in an arbitration proceeding, the court will issue the
interim measure
14
If the party is one of the parties in arbitration who is going to
issue the interim measure?
The arbitral tribunal, because the arbitral tribunal
has jurisdiction over the parties.
Where should an arbitration proceeding be held?
The parties are free to agree on the place of
arbitration. Failing such agreement, the place of
arbitration shall be in Metro Manila, unless the
arbitral tribunal, having regard to the circumstances
of the case, including the convenience of the parties
shall decide on a different place of arbitration.
Can the court set the place for arbitration?
Only in cases where there is no exercise of that
designation by the arbitrator
With respect to the place of arbitration, should it be within
the any of the parties resides or it could be in other place?
Place convenient to the parties no necessarily where
the parties resides
May the arbitrators set a place apart from the place of
arbitration where they could discuss the issue in the
arbitration proceeding with respect to the witnesses, experts
etc?
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.
What language should the parties adopt in the arbitration
proceedings?
The parties are free to agree on the language or
languages to be used in the arbitral proceedings.
Failing such agreement, the language to be used
shall be English in international arbitration, and
English or Filipino for domestic arbitration, unless
the arbitral tribunal shall determine a different or
another language or languages to be used in the
proceedings. This agreement or determination,
unless otherwise specified therein, shall apply to any
written statement by a party, any hearing and any
award, decision or other communication by the
arbitral tribunal.
Can they adopt a language that is not known between the
two of them?
No
Can they adopt a language that is known by only one of the
parties?
No
 ALTERNATIVE DISPUTE RESOLUTION reviewer by MARX
Must the language be known by the parties and arbitrators?
Yes, because it is required that the language should
be known by the parties and arbitrators.
ADR6
How do we choose an arbitrator?
It will depend on the nature of the dispute
E.G
If the dispute concerns interpretation of the contract
which is based in a legal issue, then the qualification
of an arbitrator who is required to be appointed is
that of a judge, because it involves interpretation of
the contracts, or a lawyer as the case may be
But if the issue involves technical matters like
construction or accounting of financial matters what
is required is an engineer or an architect or a CPA or
an account that matter.
So those are the measures in selecting the arbitrators, it will
depend on the nature of the dispute.
How are the arbitrators appointed?
Under the domestic law, the arbitrators are
appointed by the parties, first if the parties agreed to
submit a submission agreement. In which case the
parties have agreed that for a certain issue between
them, they have agreed to appoint a sole arbitrator
in that submission agreement or they have agreed
that each one of them will appoint an arbitrator, and
the 2 appointed arbitrator will elect the third
arbitrator.
If it is simply an agreement with an arbitration
clause, when the parties may agree later on when
the dispute arose, for the specific appointment of
arbitrator although they don’t mention in that
arbitration clause, each of them will elect his own
arbitrator and the 3 elected arbitrators will elect the
third arbitrator.
In the absence of the parties’ appointment of an
arbitrator in either case, either in the arbitration
clause or submission agreement, then the parties
may ask the court to appoint an arbitrator.
When it is the court that is ask to appoint an arbitrator, the
qualification of an arbitrator depends on the discretion of
courts because it is the courts that is being asked by the
parties to appoint an arbitrator, and the court cannot be used
as an appointing power but it is given a discretion to select
the kind of arbitrator that is meant in that proceedings.
In arbitration, the arbitration proceeding is either conducted
thru the arbitrators appointed by the parties or appointed by
15
the court who are supposed to constitute the arbitral
tribunal. So arbitrators (3 arbitrators) duly appointed by the
parties by the court, they will constitute the arbitral tribunal.
And that arbitral tribunal will conduct the arbitration and
render the award. The other process of conducting
arbitration is thru an institution which is what we call an
institutional arbitration. We have that now in our jurisdiction
under the ADR, we have institutional arbitration Section. The
parties may avail the services of the institutional arbitration
for a fee and the institution will provide the parties with the
arbitrator of their choices. Normally they have a list of
arbitrators who are qualified as arbitrators depending on the
nature of the controversy.
In foreign countries especially in the U.S., there are 2 kinds of
institutional arbitration commission
• I.C.C.- International Chamber of Commerce
• A.A.A.- American Arbitration Association
So, if u are in the U.S. or possibly even the parties are in the
Philippines may agree to submit their arbitration either to the
I.C.C. or A.A.A.
The appointment of the ICC or AAA as the arbitral
institutional arbitration commission will depend on the
choice of the parties.
So if the parties agree to submit their dispute to any of these
institutional arbitration, the ICC or AAA will submit to the
parties a list of arbitrators for them to choose the arbitrators
of their choice.
The Rule under the ICC, the parties may each select their own
arbitrators of their choice from the list submitted by the ICC
rd
and the 3 arbitrator is appointed by the ICC. The reason for
rd
the participation of the ICC in the appointment of the 3
arbitrator is for the institution to be able to take control of
the proceedings.
In the case of AAA, they simply submit a list of arbitrators
that they will suggest and the arbitrators to arbitrate the
controversy between the 2 parties and the parties are given 7
days to select their own arbitrators. If they don’t return the
list within 7 days, the parties are deemed to have accepted
the list of arbitrators noted in that particular list by the AAA.
The qualification of the arbitrator is not material in so far as
the ICC and AAA are concerned. The reason is that they take
it upon themselves the guaranty or warranty that the
arbitrators listed on their list are qualified and are impartial.
In our particular case, our domestic arbitration law prescribes
qualification for an arbitrator in our jurisdiction, some of
which require that he is of legal age, with full enjoyment of
their civil rights and they are able to read and write. They
 ALTERNATIVE DISPUTE RESOLUTION reviewer by MARX
should not be related by marriage or blood in any of the
parties involve in the case or involve in arbitration within the
6 degree and those arbitrators should be free from any
fiduciary or financial interest in the controversy between the
2 parties and that is to prevent any partial act on the part of
the arbitrators. Such requirements are not required under
the AAA or ICC.
The citizenship is not a requirement. The arbitrator need not
be a Filipino; it is upon the choice of the parties. But it that
arbitrator is a foreigner or even a foreigner who is a lawyer,
that particular foreign lawyers may act as an arbitrator
without necessarily prohibited under our present law that he
cannot act as a counsel in a judicial or quasi-judicial
proceedings because the role of an arbitrator is not the role
of the lawyers who appear and protect the interest of the a
party in an arbitration proceedings. But even in arbitration
appoints an arbitrator who is a lawyer it does not matter at
all, because he is deemed to act as an arbitrator not as a
lawyer of any of the parties.
How is a party supposed to determine a good arbitrator in our
jurisdiction? Guideline on how to elect/select their own
arbitrator. There are 3 particular aspects/measure.
• That arbitrator must be one that is persuasive.
During arbitration proceedings that the cause of the
party to have elected the arbitrator, should be able
to receive a favorable consideration at the end of
the arbitration proceedings. He should be persuasive
in his acts, arguments. So if the arbitrator elected by
the party could hardly communicate, read, write,
etc.. he could never be a persuasive arbitrator and
therefore he does not acquire the first qualification.
Persuasiveness is innate to a person.
• The arbitrator selected by the parties must be a truly
aware what he had been elected by one of the
parties to be arbitrator in order to help resolve then
dispute and therefore he must be one who has
signed, read, cited, analyzed and determined the
validity of the cause of the party who elected him as
an arbitrator. In such a case he must be an
arbitrator, who has fully accepted the cause of the
party who elected him, he must be convinced that
the cause of the party who elected him as an
arbitrator should be upheld in that arbitration.
Although the law says that an arbitrator cannot act
as a counsel of a party who could approved the
cause of that particular party. Nonetheless the
second measure of a true arbitrator is one who has
fully adopted the cause of the party who has
accepted him to act as an arbitrator. He must be
truly convinced that particular cause of a party who
elected him as the arbitrator should be the same in
the award after the proceedings.
16
• The arbitrator must be able to persuade the other
arbitrators to adopt his position.
As we can see that in arbitration proceedings, the arbitrators
themselves clash against each other, they have a dispute, and
rd
that is the reason why there is a need for an umpire or a 3
arbitrator because if both of them had disagreed then there is
rd
an unresolved situation hence the role of a 3 arbitrator is
important in order to adopt a majority opinion in the
resolution of the case. The only exception here is if the
parties require that there should be a unanimous decision.
The fees of the arbitrators under our jurisdiction, the
arbitrator are not paid Php50. The parties will stipulate in the
arbitration that one party will select an arbitrator and as to
how much that particular arbitrator be paid by him. The other
party will do the same with the arbitrator that he chose. The
problem arise when to the fee of the third arbitrator because
rd
if both parties now will agree on how much on the 3
arbitrator suppose to pay and what would be his
participation. Normally it’s 50-50. And the amount to be paid
is going to be agreed upon by the parties.
What are the pleadings that are to be submitted in cases of
arbitration most especially in commercial arbitration?
• Complaint or petition
• Copy of submission of agreement to arbitrate the
matters disputed by the parties. That particular copy
should contain:
o Name and addresses of the parties
o Nature of the dispute
o Amount involve (if there is any)
o Agreed procedure on the appointment of
arbitrator
o Signature of the parties on the document
o Reservation- refers to a situation when the
parties reserve the right to terminate the
arbitration proceedings jointly, if they feel
that the purposes for which they had
sought to avail in the arbitration
proceedings may not be obtain after all. So
if there is a reservation of the parties to
terminate the arbitration proceedings at
any stage the parties may terminate the
same. If there is no reservation, once the
arbitration has begun in a case of
submission agreement then the arbitration
proceedings would have to be finished and
terminated.
o Relief sought
• Demand letter for arbitration, the dispute between
the 2 parties. If that demand filed in the court will
turn out to be a complaint or a petition, most
especially in when the party demand with the other
party to go to arbitration and there was a refusal to
 ALTERNATIVE DISPUTE RESOLUTION reviewer by MARX
accept the demand. Under our rules, the party
(applicant) can go to court and file the demand in
court and ask the court to direct the parties to go to
arbitration then that demand when it was filed in
court becomes a complaint or a petition. In a normal
court proceeding, a petition or complaint would
have to be answered by the other party. If there is
no answer after the lapse of 15 days upon the return
of the summons the party will be declared in default.
In arbitration, the other party who received the
demand need not answer if that is his choice. He can
just wait on whatever is the consequence of that
arbitration proceeding without his active
participation. What is the consequence is arbitration
if there is no answer? If there is no answer coming
from the other party who had received the demand
for as long as he was served a copy of that demand
or an order of the court, but he did not file answer
or a reply or a response and neither did he appear in
the arbitration proceedings that particular refusal to
file an answer is tantamount to a repudiation of the
claim of the other party in that demand. In other
words, he does not accept whatever is laid against
him because in arbitration the filing of an answer is
not mandatory, it is permissive. Failure to answer
will result in a repudiation of all allegations of the
other party as if he had answer. In that particular
case, the issues are joined because there is
repudiation. If he answers, he can offer all kinds of
defenses, special and affirmative defenses, he can
even file a counterclaim and specific relief from the
other party on the basis of that counterclaim.
• The parties may be required to submit an arbitration
memorandum after the presentation of their
evidence. And that brief will make the arbitrators to
be able to determine and hand down a valid arbitral
award. The arbitration brief is not mandatory, the
parties may submit the entire evidence they had
presented or documents simply after they have been
marked as exhibits and identify during the
arbitration proceedings. Once they have been
identified and marked as exhibits that will be
sufficient for the arbitration to consider in rendering
an arbitral award.
Where do u file the pleading?
The pleading during the arbitration proceedings is to
be filed with the arbitral tribunal. If the matter have
been submitted to the court for a resolution for a
certain disputes arising during the arbitration
proceedings like an issue challenging the
qualification of an arbitrator then the pleadings
connected with that issue should be filed in court
and the arbitration proceedings in that instance will
be suspended until such time the court proceedings
17
had been terminated. So it depends on particular
stage of the arbitration proceedings with respect to
where to file ur pleadings. Normally it is filed with
the arbitral tribunal but if the matter are of the
court, then the court will hear the party and received
evidence.
What dispute should be submitted to arbitration?
Any controversy between the parties, the parties has a
choice onto what issue should be the subject of
arbitration except:
(a) labor disputes covered Labor Code
(b) the civil status of persons;
(c) the validity of a marriage;
(d) any ground for legal separation;
(e) the jurisdiction of courts;
(f) future legitime;
(g) criminal liability; and
(h) Those which by law cannot be compromised.
Is the court bound to accept a particular issue elected by the
parties that would be a subject of arbitration in the event that
the party (applicant) who make a demand for arbitration and
the other party refuse to such demand and the party
(applicant) goes to court and ask the court to direct them to
go to arbitration, is the court bound to order to the issue of
these parties to be a subject of arbitration?
Yes, as long as such issue do not fall under the
exceptions above
What are the other grounds that the court may use to refuse
to allow the parties to go to arbitration?
When the arbitration is:
• Null and void,
• Inefficacious or
• Incapable of being performed
Is an issue concerning an evaluation of claim for a sum of
money a matter that is covered by arbitration?
Yes
How about with respect to whether or not the claim is
commercial or not, let say, an agreement was signed by
parties A and B, and B refuse to accept the agreement later
on and he said that the agreement concerns a commercial
relations between them, can that be a subject of arbitration?
A determination of the commercial nature of that transaction
between the parties?
Yes
Should it be contractual all the time?
No, it may be contractual or not for as long as such
issue does not fall within the exceptions
 ALTERNATIVE DISPUTE RESOLUTION reviewer by MARX
A and B entered into a contract, B is a minor, at the signing of
the consummation of the contract, A knew that B was a
minor. Nonetheless A makes a demand for arbitration, can A
claim later on his demand for arbitration should not be
considered because B is of legal age?
No, A cannot make a claim later on demanding that
the arbitration should not be considered because B
is a minor because he knew upon the consummation
of the contract that B was still a minor. It is only B
who can make use of such defense of incapacity
(being a minor).
What if the claimant (A) did not knew that B is a minor?
Then A can raise an issue that B was incapacitated
(minor) to block the arbitration proceedings
In what form of arbitration agreement should the submission
of agreement to arbitration be?
It shall be in writing and subscribed by the party
sought to be charged, or by lawful agent.
If the parties agreed orally that their present dispute should
be submitted to immediately to arbitrate, is that binding to
both parties?
No, the law requires that it should be in writing and
subscribed by the parties, as if there is no agreement
constituted by the parties.
Suppose both parties now agreed to submit their present
dispute to arbitration, they agreed in that particular contract,
what is the effect of that agreement?
The making of a contract or submission for
arbitration, providing for arbitration of any
controversy shall be deemed a consent of the parties
to the jurisdiction of the Court. The signing of the
document confers jurisdiction of the court (RTC) of
either parties where they deposited such document.
How do the parties confer that agreement to accept the
jurisdiction of the court?
By the act of depositing of agreement to the clerk of
court where one of the parties resides
How is the Arbitration agreement initiated by the parties?
In case of arbitration agreement, by the service by
either party upon the other of a demand for
arbitration in accordance with the contract.
When should such demand be available?
When the dispute arises
What should the demand consist of?
• Nature of the controversy
• Amount involve (if any)
• Relief sought
18
• Together with a true copy of the contract providing
for arbitration
• If there is an agreement with respect to the
appointment of a single arbitrator, the demand shall
be set forth a specific time within which the parties
shall agree upon the arbitrator
• If there is an agreement with respect to the
appointment 3 arbitrators, one to be selected by
each party, the demand shall name the arbitrator
appointed by the party making the demand and shall
require that the party upon whom the demand is
made shall within fifteen days after receipt thereof
advise in writing the party making such demand of
the name of the person appointed by the second
party; such notice shall require that the two
arbitrators so appointed must agree upon the third
arbitrator within ten days from the date of such
notice.
If the party upon whom the demand is made and within 15
days he did not respond neither he respected the arbitration
agreement, what will be his remedy?
The demanding party may file a motion for the court
to direct them to arbitration
May the demanding party file a motion to declare the other
party in default?
No
If the other party did not respond to the request to go to
arbitration and to appoint his own arbitrator, the demanding
party may ask the court to direct them to go to arbitration,
can the court hear that particular demand of the demanding
party that the other party be directed to go to arbitration?
May the court act on it right away?
No, In the event that one party defaults in answering
the demand, the aggrieved party may file with the
Clerk of the Court of First Instance having jurisdiction
over the parties, a copy of the demand for
arbitration under the contract to arbitrate, with a
notice that the original demand was sent by
registered mail or delivered in person to the party
against whom the claim is asserted. The other party
is entitled to notice.
Supposing that the issue arising from that agreement is
questionable, is the court bound to act on the petition to
direct the parties to go to arbitration?
No, the court should determine first the validity of
the issues.
When the court is able to determine the validity of the
agreement, can court act on the request of the demanding
party to direct the other party to direct him to arbitration?
Yes
 ALTERNATIVE DISPUTE RESOLUTION reviewer by MARX
Will the court require the demanding party to present
evidence regarding the validity of his claim against the other
party?
No
Which body should determine the issue, since there is no
arbitral tribunal was established because the failure of the
other party to accept the order of the court to go to
arbitration neither appoints his own arbitrator, which body
will determine the claim of A?
The arbitral tribunal, because upon the default of
the other party in accepting the order of the court to
go to arbitration nor appoints his own arbitrator, the
court will appoint the arbitrator
After the appointment of the arbitrator, what is deemed
constituted?
The arbitral tribunal that was created by the order of
the court.
Suppose the parties despite of execution of account, an
arbitration agreement and despite the fact that the issues had
arisen, instead of demanding for arbitration A went to court
and file a case against B, utilizing their agreement where
there is an arbitration clause as well as documentary
evidence, the court has able to peruse the provision of the
arbitration agreement and found out that there is a real issue
that the dispute should be in arbitration, can the court issue
an order to stay the civil case and direct the parties to
arbitration?
If any suit or proceeding be brought upon an issue
arising out of an agreement providing for the
arbitration thereof, the court in which such suit or
proceeding is pending, upon being satisfied that the
issue involved in such suit or proceeding is referable
to arbitration, shall stay the action or proceeding
until an arbitration has been had in accordance with
the terms of the agreement
What is the meaning of stay?
Suspend, the court can suspend the proceeding and
direct the parties to arbitration. The court issues 2
orders, one order is directing the parties to go to
arbitration in accordance with the arbitration clause
and the other is to suspend the civil action
commenced
When should the civil proceedings commenced again?
After the termination of the arbitration proceedings
and rendering of the arbitral award. Such purpose of
going back to court is to confirm or contest the
arbitral award.
19
Can the court motu propio order the parties to go to
arbitration without any of the parties invoking the arbitration
clause?
No, because failure to invoke the arbitration clause
is deemed a waiver of that arbitration clause, then
the court should proceed with the case.
Why is it the court is powerless to direct the parties to go to
arbitration unless the one of the parties invoke the arbitration
clause?
Because the arbitration is based on the agreement
of the parties.
The court cannot compel the parties to go to arbitration if the
parties do not wish to do so.
The rule says that the court can stay the civil case for as long
as the party moving for the arbitration is not in default, what
is the meaning of that?
That the applicant, for the stay is not in default in
proceeding with such arbitration means that the
party asking the court to direct them to arbitration
must invoke it on or before pre-trial conference,
failure to invoke such arbitration clause means the
court will have no power to direct them to
arbitration therefore he cannot stay the civil case
but such civil case must proceed to the proceedings.
Under what circumstances will the court appoint the
arbitrator?
(a) If the parties to the contract or submission are
unable to agree upon a single arbitrator; or
(b) If an arbitrator appointed by the parties is unwilling
or unable to serve, and his successor has not been
appointed in the manner in which he was appointed;
or
(c) If either party to the contract fails or refuses to
name his arbitrator within fifteen days after receipt
of the demand for arbitration; or
(d) If the arbitrators appointed by each party to the
contract, or appointed by one party to the contract
and by the proper Court, shall fail to agree upon or
to select the third arbitrator.
(e) The court shall, in its discretion appoint one or three
arbitrators, according to the importance of the
controversy involved in any of the preceding cases in
which the agreement is silent as to the number of
arbitrators.
(f) Arbitrators appointed under this section shall either
accept or decline their appointments within seven
days of the receipt of their appointments. In case of
declination or the failure of an arbitrator or
arbitrators to duly accept their appointments the
parties or the court, as the case may be, shall
 ALTERNATIVE DISPUTE RESOLUTION reviewer by MARX
proceed to appoint a substitute or substitutes for
the arbitrator or arbitrators who decline or failed to
accept his or their appointments.
If both parties did not appoint any arbitrators and supposing
that in the agreement of the parties each will appoint an
arbitrator, can the court motu propio appoint the arbitrators
when the parties requested such court to appoint their
arbitrators in their own behalf?
No, the court cannot appoint an arbitrator without
any of those circumstances occurring prescribed by
law
On what basis will the court appoint an arbitrator for the
contending parties?
If one party fails to appoint an arbitrator within the
prescribed time and upon the request of the party
demanding for arbitration.
If there is a failure of both parties to appoint their own
arbitrator, can the court appoint an arbitrator upon the
request of both parties in their behalf?
No, because both of them breached the contract
they cannot ask the court to appoint an arbitrator in
their behalf. Both of them are in default. The
arbitration is deemed waived by not appointing their
own arbitrator.
If the party to whom the demand was made did not appoint
his own arbitrator and neither participate in the proceedings,
then the court appoints an arbitrator, will the arbitration
proceeds despite of the absence of such?
Yes
Can there be a judgment of default?
None
The arbitral tribunal will continue the proceedings and render
an award on the basis of the evidences presented by the
party who demanded such arbitration. Obviously the award
will be in favor of the party who filed the complaint and
presented his evidence, but if the evidence is not adequate,
the arbitrator has the right to deny the complainant for an
award, it may dismissed the action.
The mere fact that the party whom the demand was made
did not defy the arbitral tribunal to proceed and render an
award. But the failure of such party to appear is not an
admission of its liability to the other party because there is no
default in the arbitration proceedings.
If both parties did not present their evidence, the arbitral
tribunal cannot exercise its discretion to determine/resolve
the issue. So the arbitral tribunal will dismiss the arbitration
proceedings
20
Suppose the parties stipulated in their agreement that they
will add more arbitrators, is the agreement allowed?
Yes, Where a submission or contract provides that
two or more arbitrators therein designated or to be
thereafter appointed by the parties, may select or
appoint a person as an additional arbitrator, the
selection or appointment must be in writing. Such
additional arbitrator must sit with the original
arbitrators upon the hearing.
If the parties find it necessary to appoint more than 3
arbitrators, they can provide additional arbitrators in their
agreement provided that such agreement is in writing and
subscribe by the parties.
What are the normal qualifications of arbitrators?
• must be of legal age,
• in full-enjoyment of his civil rights
• know how to read and write.
• No person appointed to served as an arbitrator shall
be related by blood or marriage within the sixth
degree to either party to the controversy.
• No person shall serve as an arbitrator in any
proceeding if he has or has had financial, fiduciary or
other interest in the controversy or cause to be
decided or in the result of the proceeding, or has any
personal bias, which might prejudice the right of any
party to a fair and impartial award.
What is the primary obligation of an appointed arbitrator in
relation to qualifications?
if, after appointment but before or during hearing, a
person appointed to serve as an arbitrator shall
discover any circumstances likely to create a
presumption of bias, or which he believes might
disqualify him as an impartial arbitrator, the
arbitrator shall immediately disclose such
information to the parties.
What are the duties of the parties as soon as the arbitrator
disclosed that kind of information?
The parties may agree in writing:
(a) to waive the presumptive disqualifying
circumstances; or
(b) to declare the office of such arbitrator vacant.
Any such vacancy shall be filled in the same
manner as the original appointment was made.
Chung Fu Industries vs Court of Appeals
Facts: Chung Fu and Roblecor entered to a construction
agreement, where it was agreed that Roblecor was
committed to construct and finish an industrial factory for
Chung Fu. In the event of disputes arising from the
performance of subject contract, it was stipulated therein
 ALTERNATIVE DISPUTE RESOLUTION reviewer by MARX
that the issue(s) shall be submitted for resolution before a
single arbitrator chosen by both parties.
Apart from the aforesaid construction agreement,
Chung Fu and Roblecor entered into two (2) other ancillary
contracts to wit: the construction of a dormitory and support
facilities; the installation of electrical, water and hydrant
systems at the plant site.
respondent Roblecor failed to complete the work despite the
extension of time allowed it by Chung Fu.
Claiming an unsatisfied account of P10,500,000.00
and unpaid progress billings of P2,370,179.23, Roblecor on
May 18, 1990, filed a petition for Compulsory Arbitration with
prayer for Temporary Restraining Order before respondent
Regional Trial Court, pursuant to the arbitration clause in the
construction agreement. Chung Fu moved to dismiss the
petition and further prayed for the quashing of the
restraining order.
The parties mutually agree that the arbitration shall
proceed in accordance with the following terms and
conditions that “there shall be no further judicial recourse if
either party disagrees with the whole or any part of the
arbitrator's award.”
Arbitrator Asuncion ordered petitioners to
immediately pay respondent contractor, the sum of
P16,108,801.00. He further declared the award as final and
unappealable, pursuant to the Arbitration Agreement
precluding judicial review of the award.
Roblecor moved for the confirmation of said award.
On the other hand, Chung Fu moved to remand the case for
further hearing and asked for a reconsideration of the
judgment award claiming that Arbitrator Asuncion committed
twelve (12) instances of grave error by disregarding the
provisions of the parties' contract.
Trial Court Affirmed
CA concur
Issue: whether subject arbitration award is indeed beyond
the ambit of the court's power of judicial review.
Held: We rule in the negative. It is stated explicitly under Art.
2044 of the Civil Code that the finality of the arbitrators'
award is not absolute and without exceptions. Where the
conditions described in Articles 2038, 2039 and 2040
applicable to both compromises and arbitrations are
obtaining, the arbitrators' award may be annulled or
rescinded. 19 Additionally, under Sections 24 and 25 of the
Arbitration Law, there are grounds for vacating, modifying or
rescinding an arbitrator's award. 20 Thus, if and when the
factual circumstances referred to in the above-cited
provisions are present, judicial review of the award is
properly warranted.
The power of judicial review may be invoked thru
under Rule 65 of the Revised Rules of Court. this action will lie
only where a grave abuse of discretion or an act without or in
21
excess of jurisdiction on the part of the voluntary arbitrator is
clearly shown. For "the writ of certiorari is an extra-ordinary
remedy and that certiorari jurisdiction is not to be equated
with appellate jurisdiction. In a special civil action of
certiorari, the Court will not engage in a review of the facts
found nor even of the law as interpreted or applied by the
arbitrator unless the supposed errors of fact or of law are so
patent and gross and prejudicial as to amount to a grave
abuse of discretion or an exces de pouvoir on the part of the
arbitrator."
That voluntary arbitrators, by the nature of their
functions, act in a quasi-judicial capacity. 24 It stands to
reason, therefore, that their decisions should not be beyond
the scope of the power of judicial review of this Court.
That petitioners have amply made out a case where
the voluntary arbitrator failed to apply the terms and
provisions of the Construction Agreement which forms part
of the law applicable as between the parties, thus committing
a grave abuse of discretion. Furthermore, in granting
unjustified extra compensation to respondent for several
items, he exceeded his powers — all of which would have
constituted ground for vacating the award under Section 24
(d) of the Arbitration Law.
Reyes vs Balde II
The CIAC has original and exclusive jurisdiction over disputes
arising from or connected with construction contracts
entered into by parties that have agreed to submit their
dispute to voluntary arbitration. Here, the presence of the
arbitration clause in the parties’ contract vests jurisdiction on
the CIAC on all controversies arising from such contract. The
arbitral clause in the agreement is a commitment by the
parties to submit to arbitration the disputes covered therein.
Because the clause is binding, they are expected to abide by it
in good faith.
Fiesta World Corp. vs Linberg Phil
It is clear from the records that Fiesta World Corp disputed
the amount of energy fees demanded by Linberg, However,
Linberg, without prior recourse to arbitration as required in
the Contract, filed directly with the RTC its complaint, thus
violating the arbitration clause in the contract. The arbitration
agreement is the law between the parties. Since that
agreement is binding between them, they are expected to
abide by it in good faith. And because it covers the dispute
between them in the present case, either of them may
compel the other to arbitrate. Thus, it is well within Fiesta
World Corporation’s right to demand recourse to arbitration.
Moreover, the computation of the energy fees disputed by
Fiesta World also involves technical matters that are better
 ALTERNATIVE DISPUTE RESOLUTION reviewer by MARX
left to an arbitration panel who has expertise in those areas.
ADR are encourage by the Courts.
On what ground do the parties to arbitration challenge an
arbitrator?
An act of bias or partiality on the part of the
arbitrator?
When such challenge be raised in respect to arbitration
proceedings?
The arbitrators may be challenged only for the
reasons mentioned in the preceding section which
may have arisen after the arbitration agreement or
were unknown at the time of arbitration.
A challenge can be raised anytime before, during,
after the award has been rendered except when the
award has attain its finality
Arbitrator X was challenge by party B, in the middle of the
arbitration on the ground that such arbitrator executed acts
of partiality to the other party which affects his position as
arbitrator. Arbitrator X refused to yield, what can party B do
to protect his rights?
If they (arbitrator) do not yield to the challenge, the
challenging party may renew the challenge before
the Court of First Instance (now Regional Trial Court)
of the province or city in which the challenged
arbitrator, or, any of them, if there be more than
one, resides.
What kind of relief should Party B be asking?
Arbitrator X should be disqualify as an arbitrator and
therefore be removed thru a court order.
What will be the consequence in the arbitration proceedings?
While the challenging incident is discussed before
the court, the hearing or arbitration shall be
suspended, and it shall be continued immediately
after the court has delivered an order on the
challenging incident.
An arbitrator was appointed, what should he do in relation to
the procedure of arbitration?
Subject to the terms of the submission or contract, if
any are specified therein, are arbitrators selected as
prescribed herein must, within 5 days after
appointment if the parties to the controversy reside
within the same city or province, or within 15 days
after appointment if the parties reside in different
provinces, set a time and place for the hearing of the
matters submitted to them, and must cause notice
thereof to be given to each of the parties.
22
As soon as the time and place has been selected and set for
arbitration, the parties are entitled to notice, what period of
time?
within 5 days after appointment if the parties to the
controversy reside within the same city or province,
or within 15 days after appointment if the parties
reside in different provinces.
As soon as had been given their respective notices of the place
and time of the arbitration hearing, what are the parties
suppose to do?
Attend the hearing, they can be represented by
counsel.
As a general rule who are the parties entitled to appear
before the arbitration?
No one other than a party to said arbitration, or a
person in the regular employ of such party duly
authorized in writing by said party, or a practicing
attorney-at-law, shall be permitted by the
arbitrators to represent before him or them any
party to the arbitration. Any party desiring to be
represented by counsel shall notify the other party
or parties of such intention at least five days prior to
the hearing.
Persons having a direct interest in the controversy
which is the subject of arbitration shall have the
right to attend any hearing; but the attendance of
any other person shall be at the discretion of the
arbitrators.
As a matter of right, the lawyers have the right to
appear.
How should the arbitration proceedings proceed?
The hearing may proceed in the absence of any party
who, after due notice, fails to be present at such
hearing or fails to obtain an adjournment thereof
What should the arbitrator require for the parties to do in
presenting their evidence? Is there a set of rules to be
followed? What are the parties required to establish in the
arbitration proceedings?
The parties are required to summarize the issues of
their respective dispute. After the issue, present
their statement of facts of their respective case. But
the parties may agree on their statement of facts.
After the statement of facts, the parties now are
allowed to present their evidences.
How is the evidence supposed to be presented?
Evidences are identified as exhibits
Should the identity of the exhibits be established?
Yes
 ALTERNATIVE DISPUTE RESOLUTION reviewer by MARX
Who is supposed to establish?
The party presenting his evidence
Who is supposed to determine the materiality and relevancy
of the evidence?
Arbitrator
Based on what?
Equity, fairness and impartiality, ADR is not bound in
the rules of evidence
Why is it the strict rules of evidence are excluded in
arbitration proceedings?
Because the Arbitration proceedings is a settlement
of a case done outside of a court
Can the arbitration proceedings be postponed by the instance
of the parties?
The hearing can be postponed or adjourned by the
arbitrators only by agreement of the parties
Can the arbitrators postpone the proceedings upon their own
motion?
The arbitrators postpone the proceedings upon their
own motion only for a good and sufficient cause
Adjournment may be ordered by the arbitrators upon their
own motion only at the hearing and for good and sufficient
cause.
No adjournment shall extend the hearing beyond the day
fixed in the submission or contract for rendering the award,
unless the time so fixed is extended by the written agreement
of the parties to the submission or contract or their
attorneys, or unless the parties have continued with the
arbitration without objection to such adjournment.
Party B was absent during the arbitration proceedings, it was
agreed by the parties that the proceedings should continue
without postponement, the arbitrators proceed with the case
despite the absence of party, can the arbitrators render a
judgment in favor of party A on the basis of the fact that no
evidence is presented by party B who did not appear in the
proceedings? Will the absence of party B be the basis of the
judgment?
No, the hearing may proceed in the absence of any
party who, after due notice, fails to be present at
such hearing or fails to obtain an adjournment
thereof. An award shall not be made solely on the
default of a party. The arbitrators shall require the
other party to submit such evidence as they may
require for making an award.
23
If party A appear but did not present evidence, party B fails to
appear hence he was not able to present his evidence, can
there be an arbitral award?
Yes, the arbitral award is the dismissal of the case.
Suppose the evidence presented by party A is inadequate,
party B’s evidence is also inadequate, what should be the
nature of the award?
Dismissal
What is the measure of the arbitrators in decision making in
this case, since the rules of court would not apply?
The guideline in assessing their evidence is based on
equity, fairness and impartiality.
Can they require testimonies of experts?
Yes
Can they subpoena evidence on records?
Yes
Can they require stenographers to take down the
proceedings?
Yes
Arbitrators shall have the power to require any person to
attend a hearing as a witness. They shall have the power to
subpoena witnesses and documents when the relevancy of
the testimony and the materiality thereof has been
demonstrated to the arbitrators.
Are the arbitrators qualified to administer oaths?
Arbitrators shall have the power to administer the
oaths to all witnesses requiring them to tell the
whole truth and nothing but the truth in any
testimony which they may give in any arbitration
hearing. This oath shall be required of every witness
before any of his testimony is heard.
Can they administer oaths on themselves?
No, Before hearing any testimony, arbitrators must
be sworn, by any officer authorized by law to
administer an oath, faithfully and fairly to hear and
examine the matters in controversy and to make a
just award according to the best of their ability and
understanding.
 ALTERNATIVE DISPUTE RESOLUTION reviewer by MARX
ADR8
Parties A and B appointed 3 arbitrators in their agreement,
rd
the first 2 was appointed by each party and the 3 was
appointed by the 2 arbitrators. After the Arbitral Tribunal was
created only 2 arbitrators attended the arbitration
proceedings up to the time that an award was rendered, is
that a valid arbitration proceeding? All the time only 2
attended hear and receive evidences. Is the arbitral award
valid when only 2 arbitrators attended and signed the award?
It is valid, because an award by the majority of them
is valid unless the concurrence of all of them is
expressly required in the submission or contract to
arbitrate.
Where should that be found, the concurrence of the three
arbitrators?
In the submission agreement or in the arbitration
clause in their contract
General Rule: a majority vote makes the award valid
Exception: unless the parties agreed that there should be a
concurrence of three.
Under that situation, where the parties have appointed 2
arbitrators but only 2 signed the arbitral award because the
other 1 had not presented in the arbitration proceedings such
award is still valid, for as long as the parties did not agreed or
stipulated in the arbitration agreement or in the submission
that there should be a concurrence of the 3 arbitrators to
validate an award, if there is no such agreement a majority
makes the award valid.
Are the arbitrators required to hear all the evidence presented
during the arbitration proceeding?
Yes, All of the arbitrators appointed in any
controversy must attend all the hearings in that
matter and hear all the allegations and proofs of the
parties
So if only 2 arbitrators out of 3 had been hearing the evidence
and only 2 signed the arbitral award, does that violate the
provision of the law?
No, because the law requires that an award by the
majority of them is valid unless the concurrence of
all of them is expressly required in the submission or
contract to arbitrate.
So in that instance, only 2 attended out of three arbitrators in
the arbitration proceedings, but the 2 arbitrators did not have
a unanimous vote on the award, could there be a valid
award?
No, because there is no majority.
24
In order that a majority vote in that award what should
happened in that case?
rd
The 3 arbitrator must be asked to attend and
participate in the deliberation of the awarding of
that arbitration award. Because there can be no
rd
majority decision if that 3 arbitrator was not
required to attend the arbitration proceedings. He
must be required to attend the arbitration
proceedings so that there could be a majority.
Arbitration proceedings has begun, the parties now are
suppose to present evidence, what should be the proceeding?
Arbitrators may, at the commencement of the
hearing, ask both parties for brief statements of the
issues in controversy and/or an agreed statement of
facts.
In what form should the issues would be? What should the
parties do with respect to the issue?
The parties will submit their respective issues to that
particular case.
In addition to the presentation of issues, what else should the
parties be required to do?
Submit the facts of their case
Suppose the parties vary the facts, meaning the issue of A is
different from the issue of B, the statement of facts by A is
different from the statement of facts by B, can that be? What
will be the procedure? Can the arbitrators consider that as a
part of the arbitration proceeding?
Yes, because the parties have their different
positions meaning they differ in their issues as well
as to their facts.
Can they have a joint issue as well as facts?
Yes, they can have one agreed statement of facts
After the presentation of issues and facts, what is next?
Thereafter the parties may offer such evidence as
they desire, and shall produce such additional
evidence as the arbitrators shall require or deem
necessary to an understanding and determination of
the dispute.
Who will present evidence?
Both parties
How is the arbitration board supposed to consider the
documentary evidence presented?
The arbitrators shall be the sole judge of the
relevancy and materiality of the evidence offered or
produced, and shall not be bound to conform to the
Rules of Court pertaining to evidence.
 ALTERNATIVE DISPUTE RESOLUTION reviewer by MARX
With respect to the documents presented by the parties, how
will the arbitrators identify the documents?
Arbitrators shall receive as exhibits in evidence any
document which the parties may wish to submit and
the exhibits shall be properly identified at the time
of submission. It will be considered and marked as
exhibits.
What are the parties further required to do with the
documents?
The exhibits shall be properly identified at the time
of submission.
Why identification is is necessary?
For the determination of relevance and materiality
of the exhibits
The presentation of evidence during the arbitration
proceedings is entirely different from the presentation of
evidence in a civil case.
In a civil case, concerning a civil claim, the parties are
presenting evidence separately, the same as in arbitration
proceedings, where in a civil case there is a presentation of
evidence of the plaintiff and followed by the presentation of
evidence by the defendant. (civil and criminal procedures)
In a civil case, the court is supposed to determine the
relevance and materiality of the evidence based on the rules
of evidence where there are exclusionary provisions. Under
the rules of evidence, not all documentary and testimonial
evidence are admissible.
In arbitration proceedings, not all rules of evidence are
attended because arbitrators are given a right to use their
conscience or fairness to determine the relevance and
materiality.
During the arbitration proceedings, who should have the
possession of documentary evidence?
During the proceedings, the exhibits of the parties
may remain in the possession of the parties before
they close that evidence during the arbitration. If for
instance, party A will close his case, his documentary
evidence will be left in the possession of the
arbitrators but upon the closure of the arbitration
proceedings the documentary exhibits are left with
the clerk of court.
Which clerk of court?
The clerk of court of the Regional Trial Court having
jurisdiction over the arbitration proceedings
25
Why is it left in the possession of the clerk of court?
In the event of a vacation of the award or
modification, then it is easier for the court to
determine such vacation or modification.
What are the powers of the arbitrators?
• to administer the oaths to all witnesses requiring
them to tell the whole truth and nothing but the
truth in any testimony which they may give in any
arbitration hearing
• To require any person to attend a hearing as a
witness.
• To subpoena witnesses and documents (subpoena
duces tecum) when the relevancy of the testimony
and the materiality thereof has been demonstrated
to the arbitrators.
• Arbitrators may also require the retirement of any
witness during the testimony of any other witness.
• To grant interim measure
• To render an arbitral award
Who is suppose to inquire for that interim measure?
The parties
Do the arbitrators have the power to cross-examine?
Yes
What is the basis?
The duty to determine the relevancy and materiality
of the testimonies. The power to interrogate or to
cross-examine to which for the determination of the
truth of the testimony is inherent in the powers of
the arbitrator to the relevancy and materiality of the
evidence.
So it is more or less like the court procedure, direct, cross, re-
direct and re-cross. The parties can interrogate or even ask
permission to ask questions for the purpose of clarifying
matters because that is a part of the procedure to help the
arbitrators in determining the relevance and materiality of
the particular evidence.
What particular matter is not covered by the duty or power of
the arbitrator? What can it not do?
He cannot render an award to those issues not
submitted by the parties. He must only discuss, point
out and clarify matters during the arbitration
proceeding which are relevant to the issues
submitted to that body.
How should the arbitrators determine that such an issue is
relevant in the proceeding?
On the basis of the statement of facts and issue
submitted by the parties.
 ALTERNATIVE DISPUTE RESOLUTION reviewer by MARX

Suppose during the arbitration proceedings party A is Suppose the award is given today, but before the parties
represented by Atty. Gerero and party B is represented by received the copy of the award, they file a petition to vacate
thereafter. When will be the finality of the award?
Atty. Masilungan. Atty. Masilugan objected to the
30 days from the received of the copy of the award.
interrogation of Atty. Gerero. Should the arbitrators sustain
the objection? Can the arbitrators make a ruling in such
In arbitration proceedings, although the law says, the board
objections? Sustain the objection and stop the witness in
of arbitrators is bound to render an award within 30 days
answering the interrogations because the objection is
from the closure of the proceeding. That 30-day period is not
sustained?
to be determinative of the finality of the award because the
No, because the rules of evidence do not apply in
finality of the award after the lapse of 30 days is to be
arbitration, the arbitral tribunal considers
counted not from the date that the award is issued but from
submission of all documentary evidences regardless
the date that the parties received their copy. The reason for
of they are objectionable or not subject to its
that is the parties have the right to file a petition to vacate
determination of the relevancy or materiality.
the award or to modify the award. And they have 30 days
from the receipt of the award for them to take those acts not
The arbitrators can only make a ruling regarding the
from the time that the arbitral tribunal or board of arbitrators
relevancy and materiality without any reference to the rules
render the award.
of evidence.
30 days from the receipt of the copy, because the law allows
After the submission of evidences of the parties, is the arbitral
the parties to question the award within that period of 30
tribunal bound to render a settlement?
days on the ground of vacating the award or modify the
At the close of the hearings, the arbitrators shall
award.
specifically inquire of all parties whether they have
any further proof or witnesses to present.
What is contained in an arbitration award?
The award must be made in writing and signed and
Suppose the party did not have any further evidences or
acknowledged by a majority of the arbitrators, if
witnesses, what should the arbitral tribunal do?
more than one; and by the sole arbitrator, if there is
Upon the receipt of a negative reply from all parties,
only one.
the arbitrators shall declare the hearing closed
unless the parties have signified an intention to file
When should the 3 arbitrators signed the award?
briefs.
If there is a stipulation in the arbitration agreement
by the parties, that there is a need for the
So if the parties opted to file their briefs, what should the
concurrence of the 3 arbitrators
arbitral tribunal do?
The hearing shall be closed by the arbitrations after
The award will be invalid if there is no compliance in the
the receipt of briefs and/or reply briefs.
arbitration agreement that there is a need for the
concurrence of the 3 arbitrators, because it is contrary to the
When should a brief be filed?
agreement of the parties. The agreement of the parties
Briefs may filed by the parties within fifteen days
should always be the controlling factor in arbitration.
after the close of the oral hearings
When can an arbitrator be challenge?
When should a reply brief be filed?
At anytime before the finality of the award
The reply briefs, if any, shall be filed within five days
following such fifteen-day period.
Should the award be given orally? Suppose the award is given
orally by the arbitrators at the end of the arbitration
When is the board of arbitrators supposed to render a
proceedings, is that valid?
judgment (award)?
No, it should always be in writing but a decision
From the closure of the hearing
dismissing the case need not be in form of writing
Is that award final after the arbitral tribunal had rendered an
A decision dismissing the case need not be in form of writing
award? When is the finality of the award?
because such decision is not an award.
No, after 30 days after the closing of the hearings or
if the oral hearings shall have been waived
What should the award contain?
The award must be made in writing and signed and
acknowledged by a majority of the arbitrators, if
26
 ALTERNATIVE DISPUTE RESOLUTION reviewer by MARX
more than one; and by the sole arbitrator, if there is
only one. And any remedy or relief which they deem
just and equitable and within the scope of the
agreement of the parties, which shall include, but
not be limited to, the specific performance of a
contract.
In the course of arbitration and before the arbitral tribunal
rendered an award, the parties was able to amicably settle
their matter. What should happen now in the settlement?
In the event that the parties to an arbitration have,
during the course of such arbitration, settled their
dispute, they may request of the arbitrators that
such settlement be embodied in an award which
shall be signed by the arbitrators.
Who should request that it should be considered as an
award?
The parties
Suppose the settlement of the parties of that particular
dispute between them is entirely different from what the
arbitrators would have awarded, would that be correct that
the parties would settle amicably between them after the
closure of the arbitration proceeding? Can the arbitrator say
“we will not admit that as part of the award because that is
not our award.”
No, because it is the parties requested so and the
arbitrators cannot object because it is the
agreement of the parties that controls in this case
not the decision of the arbitrators. In arbitration
there is an express agreement of the parties that
control.
It is the will of the parties that should be given
preference rather than the decision of the
arbitrators. The arbitrators should include that
amicable settlement of the parties that has been
requested by such parties.
Suppose the arbitrators refused to sign the award, is that an
award?
Yes, because it is the will of the parties on how to
resolve their dispute. It is the will of the parties that
should prevail not the objection of the arbitrators
Can the parties mutually moved that the award be vacated
and be substituted with their agreed settlement?
Yes
What will happen if they moved to vacate the award and
consider their settlement between them as the award in place
of that was vacated? Should that be considered as the
arbitration award?
Yes, the vacated award will be abandoned and the
settlement by the parties will be the award. There
27
will be a substitution of the nature of the award,
that will be binding on both parties that requested
for the vacation.
What are the grounds to vacate?
(a) The award was procured by corruption, fraud, or
other undue means; or
(b) That there was evident partiality or corruption in the
arbitrators or any of them; or
(c) That the arbitrators were guilty of misconduct in
refusing to postpone the hearing upon sufficient
cause shown, or in refusing to hear evidence
pertinent and material to the controversy; that one
or more of the arbitrators was disqualified to act as
such under section nine hereof, and wilfully
refrained from disclosing such disqualifications or of
any other misbehavior by which the rights of any
party have been materially prejudiced; or
(d) That the arbitrators exceeded their powers, or so
imperfectly executed them, that a mutual, final and
definite award upon the subject matter submitted to
them was not made.
What do we mean by exceeded his powers?
When the arbitrators rendered an award to those
issues not submitted by the parties.
One of the most used grounds for the vacation of an award is
that the board of arbitrators exceeded their powers and that
is a very controversial issue, because there are collateral
issues that is involve in every issue presented or given in the
board of arbitrators to decide. The issue may involve only
whether or not party A is entitled to a specific relief but the
board of arbitrators may go beyond that by saying that this
particular party is entitled to receive a relief and such
following additional relief. The following additional relief is
not really requested but it is collateral to the relief prayed for.
That is acceptable, for as long as it is connected with the
relief awarded.
What are these collateral reliefs granted?
For instance, there is a claim for the delivery of a
particular property to party A. the award rendered
by the board of arbitrators says “party B is required
to deliver and return to party A the particular
property sought for recovery plus the obligation to
make that property in good condition as when
acquired” that is an example of an incidental or
collateral relief.
The SC said that incidental and collateral issues are
valid for as long as they are connected to the main
issue.
 ALTERNATIVE DISPUTE RESOLUTION reviewer by MARX

When should be the case be instituted by the parties on
vacation of the award?
Notice of a motion to vacate, modify or correct the
award must be served upon the adverse party or his
counsel within thirty days after award is filed or
delivered, as prescribed by law for the service upon
an attorney in an action.
30 days from the received of the copy of the award.
Suppose a party received the award and he instituted this
petition to vacate, thirty days after the issuance of the award,
can this be done?
No, because he already waived his right to file a
petition for vacation
If he instituted a petition for a vacation of the award, with
what court should the petition be filed?
The arbitral tribunal
If there is a rejection by the arbitral tribunal then the petition
may be filed in the Regional Trial Court having jurisdiction
over the arbitration proceedings.
Using the same ground in the petition filed in the arbitral
tribunal and the same was denied by RTC, what can the party
do?
Appeal, on the grounds of vacation of the award
On what other grounds that the parties can avail apart from
filing a petition for the vacation of the award?
The parties may file a petition to correct or modify
the award
application of any party to the controversy which
was arbitrated:
(a) Where there was an evident miscalculation of
figures, or an evident mistake in the description
of any person, thing or property referred to in
the award; or
(b) Where the arbitrators have awarded upon a
matter not submitted to them, not affecting the
merits of the decision upon the matter
submitted; or
(c) Where the award is imperfect in a matter of
form not affecting the merits of the controversy,
and if it had been a commissioner's report, the
defect could have been amended or disregarded
by the court.
When the award is considered to be imperfect, what does it
mean?
There is ultra vires act on the part of the arbitrator in
deciding an issue, if such an issue is not submitted by
the parties for resolution by the board of arbitrators.
Difference between the ground for vacating an award and
the ground for modifying or correcting an award
In the first case, when the arbitrators exceeded their
powers, they had resolve an issue that was
submitted to them by the parties but the resolution
was beyond that issue submitted to them, in the
second case, they had resolve an issue that was
submitted to them.

Within what period?

Within 30 days from the received of the copy of the
award

In that petition to correct or modify, does the petitioner

acknowledges the fact that there is a valid award rendered by
the arbitrators?
Yes

How is that different from the petition to vacate?

In a petition to modify or correct an award the
petitioner acknowledges that there is a valid award
on the other hand, in the petition to vacate the
award there is no acknowledgement that there is a
valid award

What are the grounds to modify or correct an award?

Grounds for modifying or correcting award. - In any
one of the following cases, the court must make an
order modifying or correcting the award, upon the

28
 ALTERNATIVE DISPUTE RESOLUTION reviewer by MARX
FINALS
ADR9
Are the arbitrators required to attend the proceedings?
Yes
Suppose out of the 3 arbitrators, only 1 attended and the
other 2 did not attend the proceedings, can there be a valid
arbitral award?
None
Suppose there are majority signatures, but the 2 arbitrators
did not attend the proceeding, can there be a valid award?
None, because there is a defect in the arbitration
proceedings
Is that a ground for vacation? What could be the ground? If u
were the counsel and u want to vacate the award?
Defect in the arbitration proceedings due to the
failure to attend the arbitration proceedings, the
signature of the arbitrators will not validate or cure
their failure to attend the proceedings
If there are 3 arbitrators and only 2 signed the award, will
there are a valid award?
Yes, because there is a majority of the arbitrators
When should there be, the 2 signatures be void?
If there is a provision in the submission or arbitration
agreement that there is a concurrence of the 3
arbitrators in the accomplishment or signing of the
arbitration award, the 2 signatures will invalidate the
arbitration award, there must be 3 signatures
concurring if that is required otherwise only 2
signatures will be sufficient
Supposing the parties agreed for a sole arbitrator, who shall
sign the award?
The sole arbitrator appointed
Is that a valid arbitration award?
Yes, because the submission agreement or the
arbitration clause only provides for a sole arbitrator
Are the arbitrators entitled to have possession of the records
and the evidence presented during the arbitration
proceedings?
Yes
Who should have the possession of such records after the
arbitration proceedings?
The clerk of court of the RTC in which one of the
parties reside
29
Suppose the arbitration proceedings have been concluded and
the records have been submitted to the clerk of court of the
RTC in which one of the parties reside, but before they render
an award, the arbitrators demanded for the return of the
records by the clerk of court, what can the parties do to
protect their interest with respect to the records?
Ask for interim measure from the arbitral tribunal
The arbitral tribunal has the right to issue an interim measure
within its jurisdiction, suppose the records have to be summon
outside their jurisdiction, in what entity should such interim
measure be obtained?
To the court
What is the purpose of that interim measure of protection?
To preserve the rights of the parties with respect to
the confidentiality of such records and to secure the
safety of the documents against disclosure because
such records are privilege
At the start of the arbitration proceedings, where the
arbitrators are appointed and the parties are represented by
counsels, could the parties waive the presentation of
evidence?
Yes
Should the waiver be done orally?
Yes, during the arbitration proceedings
Can it be done in writing?
Yes
How can the arbitrators decide the case without the
evidence? What should they do be able to lay the necessary
requirement for them to be able to determine the merits of
the arbitration proceedings? What can the arbitral tribunal
requires the parties to do since they waived the presentation
of evidence?
Ask the parties to submit their written arguments
instead having it done orally
How about the facts in the case, since the parties did not
present evidence?
The parties can submit an agreed statement of facts
How about the issues?
The parties can submit an agreed statement of
issues
Suppose it is insufficient, the agreed statement of facts and
issues, for the arbitrators to resolve the dispute, what will the
arbitrators do?
If the arbitrators have not resolve the dispute or will
be useless without particular evidence then they can
require the parties to submit evidence.
 ALTERNATIVE DISPUTE RESOLUTION reviewer by MARX
If the parties refuse to submit evidence, what will the
arbitrators do?
The arbitrators will dismiss the arbitration
proceedings, on the ground that they are not
capable to determine the case due to the failure of
the parties to submit evidence. Although under the
rules the parties may waive the presentation of
evidence, the arbitrators have the final word to
determine on whether or not the parties should
submit evidence, and if there is a need for the
arbitrators to demand additional evidence, they can
require the parties to submit additional evidence.
How should documentary evidence be presented?
Arbitrators shall receive as exhibits (marked as
exhibits) in evidence any document which the
parties may wish to submit and the exhibits shall be
properly identified at the time of submission. After
the marking but before identification, the arbitrators
can approved or reject the submission.
If the arbitrators have seen that the documentary evidence of
the parties have been marked as exhibits and have been
identified, can the arbitrators ask questions concerning those
documentaries?
Yes, for clarification purposes, to determine the
relevance and materiality of the documents
Is it necessary for the arbitrators to conduct an ocular
inspection if the place of another is a subject of the
arbitration proceedings?
Yes, the arbitrators may make an ocular inspection
of any matter or premises which are in dispute, but
such inspection shall be made only in the presence
of all parties to the arbitration, unless any party who
shall have received notice thereof fails to appear, in
which event such inspection shall be made in the
absence of such party.
In the event of an ocular inspection or a review of the records
that is relevant to a material fact from the arbitration
proceedings, are the arbitrators entitled to request the parties
to produce all documents and exhibits that they have in their
possession prior to the rendition of the arbitral award?
Yes
Who is authorized to determine the relevancy and materiality
of the documentary exhibits?
The arbitrators
Based on what?
Based on their sense of equity, fairness and justice
30
Can the parties object to the admission of a document which
according to the arbitrators such documents is relevant to the
proceedings?
No, as long as the evidence is relevant and material
to the issue according to the arbitrators, it is trhe
judgment of the arbitrator that will decide
Can the arbitrators rule on the objection with respect to the
relevancy and materiality of the documents presented in them
and rules that it is unfounded or not valid?
Yes
The arbitration proceedings has been closed, who can moved
to reopen?
The arbitrators and the parties
On what grounds can the arbitrators reopen the proceedings?
If the evidence presented by the parties are
insufficient
On what grounds can the parties reopen the proceedings,
what is that good cause with respect to the parties?
Newly discovered evidence
Can we use the grounds to vacate the arbitral award to
reopen the case?
No, because the grounds to vacate can be used
when there is an award rendered and not in the case
where no award has been rendered yet
When can the motion to reopen be raised?
After the closure of the arbitration proceedings and
before the rendition of the award.
What is the effect if neither the arbitral tribunal nor the
parties have moved to reopen?
It will be presumed that the parties have no
objection to the proceedings that had been held. For
the arbitrators, it is now their obligation to render an
award.
When will the arbitral tribunal is required to render an
award?
30 days after the closure of the hearing
If an award is rendered after the closure, will that arbitration
award become final?
Not, such award will be final after 30 days from the
receipt of the copy of the award by the parties
Suppose the parties receive the copies of the award on the
same date and 30 days had lapsed, can that be enforce?
Yes, it can be enforce by either one party against the
adverse party
 ALTERNATIVE DISPUTE RESOLUTION reviewer by MARX
How should it be enforced?
Such award should be submitted to the same arbitral
tribunal who rendered the award
What does the award contain?
Reliefs prayed for, specific performance, damages
Suppose the adverse party refused to comply, how should the
award be enforced?
The prevailing party may go to court to confirm the
award, so the court may issue an order confirming
the award
With that order, can the party now ask the court to enforce
the award?
Not yet, there must be a judgment based on the
arbitration award
With that confirming order, the court will issue a judgment
based of the arbitral award. The court cannot render a
judgment without a prior order confirming the arbitration
award?
No, the arbitral award must be confirmed first
Why is that necessary?
Because the court can only enforce its own final
judgment
Even if the arbitration award was confirmed by the order of
the court, such order cannot be enforced, the court must
render first a judgment to that arbitration award. When we
execute an arbitration award thru the judgment of the court,
we are enforcing the judgment of the court.
If an arbitration award was confirmed today Aug 20, a party
can moved for another motion to render a judgment on the
arbitration award, and the court 2 days after rendered a
judgment on the arbitration award, when can u enforce the
judgment of the court?
15 days after the receipt of the judgment
When should a party file the motion to vacate the arbitration
award?
30 days after the receipt of the award
Suppose the period of 30 days had lapse, neither of the
parties did not file a motion to vacate, what is the
consequences of that arbitration clause?
The award can be a subject of execution by the
arbitral tribunal.
If the party against whom the award was rendered complies
with the arbitration award, there is no problem otherwise,
then that is the time to go to court to enforce the arbitration
award thru a court judgment
31
What are the grounds to vacate?
Grounds for vacating award. - In any one of the
following cases, the court must make an order
vacating the award upon the petition of any party to
the controversy when such party proves
affirmatively that in the arbitration proceedings:
(a) The award was procured by corruption,
fraud, or other undue means; or
(b) That there was evident partiality or
corruption in the arbitrators or any of them;
or
(c) That the arbitrators were guilty of
misconduct in refusing to postpone the
hearing upon sufficient cause shown, or in
refusing to hear evidence pertinent and
material to the controversy; that one or
more of the arbitrators was disqualified to
act as such under section nine hereof, and
wilfully refrained from disclosing such
disqualifications or of any other
misbehavior by which the rights of any
party have been materially prejudiced; or
(d) That the arbitrators exceeded their powers,
or so imperfectly executed them, that a
mutual, final and definite award upon the
subject matter submitted to them was not
made
Suppose the arbitration award was rendered of an issue that
was not submitted by parties for arbitration, is that a ground
to vacate?
yes
Can the parties agree to consider there private settlement
during the arbitration proceedings as arbitration award?
Yes
Can they agree that it can be included by the arbitral tribunal
as a part of the arbitral award?
Yes
What would happened if the parties considered their
settlement as part of the arbitration award? Should that
settlement be a simple settlement or become an arbitral
award?
It will become an arbitral award
Should it be enforced after it had been confirm by the court?
Yes, if it has to be enforced by the court it has to be
confirmed
 ALTERNATIVE DISPUTE RESOLUTION reviewer by MARX
The arbitration award was rendered by the tribunal;
confirmed; and a judgment rendered the award. Such
judgment did not only confirm the award but it also require
the parties to pay damages, cost and attorney’s fees which
were not obtained in the arbitral award, is the court correct
for adding such damages?
No, the collateral matter that the court can provide
must be based exclusively on the body of the arbitral
award. Attorney’s fees, moral, exemplary damages
are not collateral matters
As a rule, the court can rendered judgment on the contents
of the arbitral award otherwise; it will be an ultra vires act on
the part of the court because the parties did not present
evidence with respect to the award on damages and
attorney’s fees
What documents should the counsel of the prevailing party in
the court if the party against whom the award was rendered
refused to comply?
The arbitration award and the fact that the party
against whom the award was rendered refused to
comply with the award
Can the counsel of the party against whom the award was
rendered object to that motion for confirmation and
judgment in the arbitration award?
Yes, the counsel of such party can question the
validity of the award and object such motion, he can
use the grounds in vacating the award as a ground to
object to the confirmation of the award
An arbitration award has been rendered; can the party
against whom the award was rendered appeal?
Yes, by petition for certiorari
Why petition for certiorari?
Because an arbitration proceedings is a special
proceedings and such appeal must be filed within 30
days from the service of the award
If the 30 days period had lapsed, does that mean that the
arbitral award is final?
Yes
Can the party to whom the award was rendered appeal after
the lapse of 30 days?
Not anymore
If a motion to confirm the award was moved with the court,
and such court confirmed the award, can the party against
whom the award was rendered appeal in the confirmation?
Yes, within 15 days from the service of the
confirmation of the order
32
If a judgment by the court after the confirmation was
rendered, can the party appeal?
Yes, within 15 days from the service of that
judgment
If the appeal was denied with respect to the confirmation of
the court, can the party still appeal?
Yes, on the ground of questions of law
A and B agreed to submit their dispute to arbitration, during
the proceedings, party B died before the rendition of the
award, what should the heirs of party B do?
Inform the tribunal about the death of such party,
and the court must appoint an administrator of the
estate of the deceased. The tribunal shall continue
the proceedings and rendered an award based on
the evidenced presented by party A
ADR10
A and B have their respective businesses in the Philippines
and they agreed to have their dispute to be resolve by
arbitration in the London is that an international commercial
arbitration?
No, because it is required that the place of business
of the parties must be in 2 different states
What are the ____ for it to be considered as international
commercial arbitration?
• The parties to an arbitration agreement have, at the
time of the conclusion of that agreement, their
places of business in different States
• One of the following places is situated outside the
State in which the parties have their places of
business
o The place of arbitration if determined in, or
pursuant to, the arbitration agreement
o 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
• The parties have expressly agreed that the subject-
matter of the arbitration agreement relates to more
than one country
What is the purpose why in international arbitration the
arbitration has to be held outside the places of business of the
parties who dispute has to be arbitrated?
To attain impartiality or transparency
So that if the arbitration is held in one of the place of business
of one of those parties, is that domestic or international?
Domestic, because the arbitration is held in the
place where one of the parties place of business
 ALTERNATIVE DISPUTE RESOLUTION reviewer by MARX
Suppose the arbitration is to be held in London and the place
of businesses of the parties are found in the Philippines, is
that an international arbitration?
Yes
Can the parties stipulate on what law it should govern in that
arbitration in London?
Yes
Can the parties do that in domestic arbitration?
No, because the measure of determination in cases
of domestic arbitration is based on sense of fairness,
equity and justice of the arbitrators
Under the domestic arbitration the parties are not allowed to
stipulate on what law should be governed in the
determination of the merits of their dispute, whereas in
International Arbitration, the parties could agree on what law
to apply in the determination of their dispute.
What is the reason why the parties are given the right under
international arbitration?
To prevent partiality of the arbitrators
Under our international commercial arbitration, what law
governs in our jurisdiction?
The Uncitral Model Law
The nature of the dispute is international.
In international arbitration it is of general application, it
cannot be limited to a particular jurisdiction, there is
uniformity.
Can it be subject to appeal?
Yes, on the ground of errors of law
If the arbitration is held in London and there is a clear error of
law applied in the judgment of the arbitration, to what court
should it be appealed?
The court where the parties agreed to what law
should govern their dispute
Suppose the parties agreed that the place of arbitration is in
London and the law to be applied is English laws, which court
will determine if there is an error of law in the judgment?
English Court because it is the court where the
parties agreed to what law should govern their
dispute
Suppose the place of arbitration is in the Philippines and the
law to be applied is the Philippine law, where should the
appeal be filed?
Philippine Court
33
Suppose the place of arbitration is in the Philippines and the
law to be applied is the English law, where should the appeal
be filed?
Philippine court, such court will consider whether
that law applied is against public policy, morals, or
our domestic law. It will determine in accordance
with the our rules
Suppose the English law was against the Philippine Domestic
law, the arbitration was held in the Philippines, which law
should apply?
Philippine law, because the arbitration was held in
the Philippines
When we speak of commercial Arbitration what does it
include?
Arbitration is "commercial" if it covers matters
arising from all relationships of a commercial nature,
whether contractual or not. Relationships of a
transactions: any trade transaction for the supply or
exchange of goods or services; distribution
agreements; construction of works; commercial
representation or agency; factoring; leasing,
consulting; engineering; licensing; investment;
financing; banking; insurance; joint venture and
other forms of industrial or business cooperation;
carriage of goods or passengers by air, sea, rail or
road.
Suppose the contract involves recruitment of workers who are
being sent to the Middle east, is that covered?
Yes, because it falls under services
Please read ADR5 for legal representation of foreign lawyers
for their clients
Legal Representation in International Arbitration - In
international arbitration conducted in the Philippines, a party
may be presented by any person of his choice. Provided, that
such representative, unless admitted to the practice of law in
the Philippines, shall not be authorized to appear as counsel
in any Philippine court, or any other quasi-judicial body
whether or not such appearance is in relation to the
arbitration in which he appears.
Is an arbitral tribunal quasi-judicial body?
Yes, because it accepts presentation of evidence
A foreigner can appear as representative of the parties in the
Philippine court but not as a counsel unless he is a member of
the Philippine Bar
 ALTERNATIVE DISPUTE RESOLUTION reviewer by MARX
Is the Model law is considered now as part of our domestic
law?
Yes, under RA 9285
Suppose the appearance of a foreign counsel in a court or in a
quasi-judicial hearing was not in connection with the dispute
arose from the arbitration proceedings, could he be allowed
even though he is appearing as counsel but not in connection
in the subject matter of the dispute?
Foreign counsel who is not a member of a Philippine
bar cannot appear as counsel in Philippine Courts or
quasi-judicial body regardless in such appearance is
in connection of the arbitration
What if the parties set aside the rule in prohibiting foreign
counsel to appear in Philippine court or quasi-judicial body,
there is a joint agreement, is that valid?
No, because such agreement is against public policy,
there is a deliberate intent to violate the laws
Remember: in case of failure to object on the participation of
a foreign lawyer who is not a member of the Philippine Bar,
such case it will only be limited at that instance where he
failed to object, he is not stopped all through out the
proceedings, he can object again.
Suppose the court hears a case on an issue that arose from an
arbitration agreement, can the court direct the parties to go
to arbitration under the Model law?
The court cannot motu propio direct the parties to
go to arbitration. One of the parties should invoke
such arbitration
What is the ground of the party invoking the arbitration?
That there is an arbitration agreement and therefore
the issue that has passed upon the court arose from
that agreement and they should be directed to go to
arbitration.
When should this ground be invoked?
At any time on or before the pre-trial conference by
one of the parties or at any time thereafter by the 2
parties
What will happen to the case if this was invoked under the
Model Law?
It will stay the action and wait for the award to be
rendered
The court acquires jurisdiction if an action is brought by
either parties on an issue that arose from an arbitration
agreement, and the parties on upon motion to ask the curt to
direct them to go to arbitration on or before the pre trial
conference or at the instance of both parties at any time
thereafter. The court cannot motu propio direct the parties to
34
go to arbitration because arbitration is based on the
agreement of the parties.
In domestic arbitration, the proceedings are privilege and
confidential, what about in international arbitration?
It is also privilege and confidential.
Confidential of Arbitration Proceedings. - The arbitration
proceedings, including the records, evidence and the arbitral
award, shall be considered confidential and shall not be
published except (1) with the consent of the parties, or (2) for
the limited purpose of disclosing to the court of relevant
documents in cases where resort to the court is allowed
herein. Provided, however, that the court in which the action
or the appeal is pending may issue a protective order to
prevent or prohibit disclosure of documents or information
containing secret processes, developments, research and
other information where it is shown that the applicant shall
be materially prejudiced by an authorized disclosure thereof.
What does the confidentiality covers?
Records (pleadings)
Evidence (testimonial and documentary)
Arbitral award
Can the confidentiality be set aside?
Yes, it can be set aside with the consent of the
parties, for the limited purpose (the court requires a
certain fact to be proven in court) of disclosing to
the court of relevant documents in cases where
resort to the court is allowed herein
What can a party do to protect its interest regarding the
confidentiality of the records in the arbitration proceedings?
• Ask the court for a Grant of Interim
Measure of Protection to prohibit the
disclosure
• Ask the court for a Grant of Interim
Measure of Protection to prohibit
dissemination of such information
Who is suppose to request for an interim measure of
protection?
The party whom who seek to protect his interest on
or before the constitution of the arbitral tribunal
After the constitution of the tribunal, could a party ask the
tribunal to give such protection?
Yes
If the tribunal cannot issue such protection because it is not
within its jurisdiction, what can the party requesting do?
Ask the court for the protection
 ALTERNATIVE DISPUTE RESOLUTION reviewer by MARX
Suppose the proceedings are going on before the tribunal
renders an award, can the party requesting ask the court or
the tribunal for such protection?
Yes, the party may request the tribunal provided
such protection is within its jurisdiction, if not, then
the party may request it with the court
If the award has been rendered but before the finality of the
award, can a party ask for interim protection from the
tribunal itself?
Yes
Suppose the arbitral award becomes final but there is an
event that remove the records of the proceedings, can the
party still obtain an interim measure of protection?
Yes, the court may issue such protection not the
tribunal because the arbitration proceedings have
been terminated upon the finality of the award.
Who should be in possession of the records?
The arbitral tribunal, the parties after the
proceedings may ask for the possession of the
records
If such records were turn over to the court can the parties ask
the court to turn over the records to them?
Yes
In what form does the protection order be?
• in a form of an order to prohibit an act (prohibitory
injunction)
• in a form of a mandatory injunction
• receiver
• order of inspection
• order of return of the documents
If the orders above were not obtained by the party against to
whom such order is rendered, what is the remedy?
Payment of damages and expenses incurred
In what form of the petition should the counsel of the party
requesting for such protection be required?
It should be in writing and it should contain the relief
sought to be granted, against whom the protection
is to be rendered, the grounds and supported by
evidence
The other party against whom the requested order is to be
rendered is entitled to notice because the party has the right
to oppose such motion
35
Where is the place of arbitration under the law?
Place of Arbitration - The parties are free to agree
on the place of arbitration. Failing such agreement,
the place of arbitration shall be in Metro Manila,
unless the arbitral tribunal, having regard to the
circumstances of the case, including the convenience
of the parties shall decide on a different place of
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.
Language?
Language of the Arbitration - The parties are free to
agree on the language or languages to be used in the
arbitral proceedings. Failing such agreement, the
language to be used shall be English in international
arbitration, and English or Filipino for domestic
arbitration, unless the arbitral tribunal shall
determine a different or another language or
languages to be used in the proceedings. This
agreement or determination, unless otherwise
specified therein, shall apply to any written
statement by a party, any hearing and any award,
decision or other communication by the arbitral
tribunal.
The arbitral tribunal may order that any
documentary evidence shall be accompanied by a
translation into the language or languages agreed
upon by the parties or determined in accordance
with paragraph 1 of this section.
ADR11
The Arbitral tribunal in London granted an award on an issue
concerning civil status of a party. The award was sought to be
enforce in the Philippines. An opposition was made by one of
the parties on the ground that such award cannot be enforced
in the Philippines because the issue (Civil Status) cannot be a
subject of arbitration. Under the Model law, if u are the judge
would u consider the opposition valid?
Uphold the opposition because the Model the
refusal of the enforcement of an arbitral award if the
subject matter of the award cannot be a subject of
arbitration in the place of its enforcement. The State
under which that arbitral award was rendered
cannot impose its laws on the laws of the state
where such arbitration award is sought to be
enforced. This Law shall not affect any other law of
this State by virtue of which certain disputes may
not be submitted to arbitration or may be submitted
 ALTERNATIVE DISPUTE RESOLUTION reviewer by MARX
to arbitration only according to provisions other
than those of this Law.
If u are to impose the provisions in the Model Law concerning
communications to present from the tribunal to the parties or
from the court to the parties in an arbitration proceedings,
what are the different aspects under the Model law that will
determine receipt of the communication?
Any written communication is deemed to have
been received if it is delivered to the addressee:
• personally or
• if it is delivered at his place of business,
habitual residence or mailing address;
• if none of these can be found after making a
reasonable inquiry, a written
communication is deemed to have been
received if it is sent to the addressee’s last-
known place of business, habitual residence
or mailing address by registered letter or
any other means which provides a record of
the attempt to deliver it;
• Publication
When an agreement is entered into by the parties, they
conclude that contract in the event that a dispute arises
between them should be submitted to arbitration, should that
be enforced as an agreement?
Yes
Should it be agreed between he 2 parties?
Yes
So that oral agreement itself is a fact that could be the basis
of an arbitration proceeding?
No, it should be in writing
In what form could that particular agreement be reduced into
so that there should be a basis for arbitration?
It should be in a formal form of an arbitration
agreement
Should the arbitration agreement is supposed to have any
statement that the party should go to arbitration?
Yes, it should contain an agreement that in cases of
disputes arising from their relationship it should be
solve thru arbitration
What do we call that agreement?
Arbitration clause
What is the other form?
Submission agreement
36
What is the difference between an arbitration clause and
submission agreement?
Arbitration clause – present dispute
Submission agreement – future dispute
In the absence of a written agreement with an arbitration
clause or a submission agreement, could the agreement to go
to arbitration be contained in another form?
Yes, arbitration agreement be in writing is met by an
electronic communication if the information
contained therein is accessible so as to be useable
for subsequent reference; “electronic
communication” or a letter
If a party write a letter and proposed that the dispute
between him and the other party should be submitted to
arbitration, such letter was received by the other party, is that
an agreement already between them?
Not yet, because there must be a medium of
acceptance of the proposal
What is the nature of that letter?
A letter of confirmation to arbitrate
Under the Model law since the 2 parties are living in 2
countries, the issue that arose from their relationship,
whether contractual or not should be subjected to arbitration
that is what is contained in that letter. Party A will send that
letter to party B in his country, party B now will reply saying
he concurred to the proposal to go to arbitration. A letter of
proposal from party A and a letter of confirmation from party
B.
The arbitration proceeding is going on and party A is
presenting a document as part of his evidence, party did not
raised an objection, under the model law, what is the
consequence of that failure to object?
A waiver to object
What is the consequence of this waiver to object?
The document will be accepted as evidence.
Are the arbitrators compelled to accept such document to be
a part of evidence of party A?
No, because the arbitrators are the sole judge to
determine the relevancy and materiality of the
evidence. What had been waived is the right to
object of party B, but the document is simply offered
as evidence and the arbitrators are not compelled to
accept such document as evidence.
What if party B objects?
The mere fact that there was an objection that does
not mean that the document is unacceptable, the
arbitrators has still the right to exercise its option
 ALTERNATIVE DISPUTE RESOLUTION reviewer by MARX
and his measure of judgment in accepting a
document as evidence
There is an arbitration proceedings going on as a
consequence of an agreement between party A and B. while
the arbitration proceedings is going on but before an award is
rendered, party A instituted a case in court on the same issue
that arose between party A and B. is the court bound to wait
for the award in that arbitration proceedings?
No, both proceedings work separately
Is the arbitral tribunal bound to wait for the ruling of the
court?
No, both proceedings work separately
Is there an instance for the court to direct the parties to go to
arbitration when the arbitration proceedings had already
begun separately from the civil case?
While there is an arbitration proceedings that is
going on and a civil case pending in court, the parties
can ask the court to direct them to go to arbitration
under the Model law because both proceedings
operate in different jurisdictions.
When should that matter be raised?
Before or at the time of the submission of statement
of claim or before or at the time of submission of
defense
Suppose A and B are litigating in court concerning an issue
that arose from an arbitration agreement. A filed a case
against B in court, B filed a case in arbitral tribunal. Both
proceedings render a judgment. Which judgment will prevail?
Arbitral award rendered in the arbitration
proceedings
Suppose the court rendered judgment ahead of the arbitral
tribunal?
Such a case, the finality of the judgment will be the
measure
If the court judgment becomes final ahead of the arbitral
award, which will be followed?
The court judgment, the finality is the measure of
enforceability
If the arbitral award becomes final ahead of the court
judgment, which will be followed?
Arbitral award, the finality is the measure of
enforceability
If the arbitral award becomes final ahead of the court
judgment, what will happen to the court judgment?
Moot and academic
37
While the arbitration proceedings is going on, can the parties
go to court for an interim measure of protection?
It is not incompatible with an arbitration agreement
for a party to request, before or during arbitral
proceedings, from a court an interim measure of
protection and for a court to grant such measure.
(art.9)
Suppose the parties went to the arbitral tribunal itself for the
interim measure of protection, is there any limitation on the
powers of the arbitral tribunal in granting an interim measure
of protection?
It must be within its jurisdiction
Is it important for the parties to determine the nationality of
the arbitrators?
No, No person shall be precluded by reason of his
nationality from acting as an arbitrator, unless
otherwise agreed by the parties (art.11).
If the parties have agreed to go to arbitration, can they agree
as well on the number of arbitrators?
Yes, the parties are free to agree on a procedure of
appointing the arbitrator or arbitrators (supra)
How should the appointment be made?
Both parties will appoint their own arbitrator and
rd
the 2 appointed arbitrators will appoint the 3
arbitrator
Who is supposed to determine the qualification of the
arbitrators?
The parties
The Model law is silent on the qualification of the arbitrator;
could the parties require a qualification that might be difficult
for the arbitrators to have?
The qualifications must be reasonable
Is the failure of the arbitrators to comply with the required
qualifications a ground to challenge?
Yes, unless the parties did not set for a qualifications
of the arbitrators they cannot challenge because
there will be no basis
Within what period should the parties appoint an arbitrator?
Within 15 days, each of the parties has to appoint
If a party fails to appoint the arbitrator within thirty days of
receipt of a request to do so from the other party, the
appointment shall be made, upon request of a party, by the
court
 ALTERNATIVE DISPUTE RESOLUTION reviewer by MARX
rd
When should the 2 appointed arbitrators appoint the 3
arbitrator?
Within 30 days from their appointment
In case of failure of the 2 appointed arbitrators to appoint the
rd
3 arbitrator either parties or both may request the court for
rd
the appointment of the 3 arbitrator within 30 days from the
rd
failure of the 2 appointed arbitrators to appoint the 3
arbitrator
rd
If the court failed to appoint the 3 arbitrator, what is the
remedy of the parties?
rd
The parties themselves may appoint the 3
arbitrator because they were the one who agreed to
have 3 arbitrators
What are the obligations of the arbitrators under the model
law, upon their appointment?
When a person is approached in connection with his
possible appointment as an arbitrator, he shall
disclose any circumstances likely to give rise to
justifiable doubts as to his impartiality or
independence. An arbitrator, from the time of his
appointment and throughout the arbitral
proceedings, shall without delay disclose any such
circumstances to the parties unless they have
already been informed of them by him.
When should it be disclosed?
Before or after the constitution of the arbitral
tribunal
Could it be divulge after the rendition of the award?
Yes
How about after the finality of the award?
No
How about the parties themselves, can they raise any
challenge to the arbitrators?
An arbitrator may be challenged only if
circumstances exist that give rise to justifiable
doubts as to his impartiality or independence, or if
he does not possess qualifications agreed to by the
parties. (art.12)
What are the grounds under the model to challenge the
arbitrators?
• Impartiality and independence
• Non-possession of qualifications set by the parties.
38
When should it be raised?
A party who intends to challenge an arbitrator shall,
within fifteen days after becoming aware of the
constitution of the arbitral tribunal or after
becoming aware of any circumstance referred to in
article 12(2),
If the parties learned about the circumstances before the
constitution of the arbitral tribunal, can they challenge the
arbitrators?
No, it must be after the constitution of the arbitral
tribunal
Why is it after the constitution of the arbitral tribunal why not
before?
The parties can easily replace the arbitrator
concerned
Let say that the arbitrators were elected but before the
constitution of the arbitral tribunal; can the parties if at the
time they acquired knowledge of the disqualification use that
knowledge to challenge the arbitrators during the arbitration
proceedings?
No, if the parties fail to disqualify the arbitrator
concerned it is deemed a waiver
What are the options of the appointed arbitrators in the event
that there is defect on their qualification or with respect to
their impartiality or independence?
The arbitrators may withdraw or not accept the
challenge
What are the options of the parties if the arbitrator did not
continue with the arbitral proceedings despite his knowledge
that the parties have such information that affect the
impartiality and independence of the arbitrator concerned
that is sufficient to disqualify him?
The parties may op to challenge him with the arbitral
tribunal in the form of a request
If the challenged was commenced by one of the parties during
the arbitration proceedings can the arbitral proceedings
continue?
It will continue despite of the fact that there was a
challenge. The challenged arbitrator is allowed to
participate in the deliberation of the proceedings
What is the option of the party if there is a delay in the
resolution of the challenge?
The party may petition to resolve the challenge right
away
In domestic arbitration, the proceedings are suspended until
the challenge is terminated. In the Model law the
proceedings will continue despite the challenged.
 ALTERNATIVE DISPUTE RESOLUTION reviewer by MARX
If an arbitrator is challenge on certain affecting his
impartiality or independence or his qualifications, and such
arbitrator withdraws, what is the effect of the grounds that
was used to challenge him?
The truthfulness of such grounds is not established.
Such grounds are also withdrawn because the
arbitrator withdrew
If the resolution of the arbitral tribunal is to reject the
challenge, what is the remedy of the party challenging?
To challenge the arbitrator in court by way of appeal
to the resolution rejecting the challenge
What is the consequence of that challenge in court to the
arbitration proceedings?
The arbitration proceedings will continue, but the
party challenging may ask the court for interim
measure of protection (prohibition). To prohibit the
challenge arbitrator to participate in the arbitration
proceedings
What is the effect of that prohibition?
Such arbitration will be suspended ipso facto for lack
of quorum
ADR12
If an arbitrator was appointed but he failed to perform his
work, what is the remedy of the parties in the arbitration
proceedings?
If an arbitrator becomes de jure or de facto unable
to perform his functions or for other reasons fails to
act without undue delay, his mandate terminates if
the parties agree on the termination. (art. 14)
Suppose the parties like the arbitrator and they did not
initiate the removal of that arbitrator, will that arbitrator be
entitled to remain in the arbitration tribunal despite the fact
that he failed to perform his work de jure or de facto?
The arbitrator may voluntarily resign
Suppose the arbitrator did not voluntary resign?
The arbitrator will remain
If such arbitrator fails to perform his work and he refuses to
resign, what can the parties do?
The parties may appoint a substitute arbitrator.
Where the mandate of an arbitrator terminates
under article 13 or 14 or because of his withdrawal
from office for any other reason or because of the
revocation of his mandate by agreement of the
parties or in any other case of termination of his
mandate, a substitute arbitrator shall be appointed
according to the rules that were applicable to the
39
appointment of the arbitrator being replaced. (art.
15)
Suppose because of the suspicion that such arbitrator is
partial or not independent, the arbitrator voluntarily removes
himself as an arbitrator, what is the consequence of that
withdrawal of that arbitrator in the suspicion of the parties?
An arbitrator withdraws from his office or a party
agrees to the termination of the mandate of an
arbitrator, this does not imply acceptance of the
validity of any ground referred to in this article.
(Article 14 par. 2)
What is the basis of the resignation of that arbitrator?
He voluntarily withdraw his mandate
Does it have any significance on the suspicion of the parties?
None, this does not imply acceptance of the validity
such ground
In the course of the arbitration proceedings, one of the parties
moved to question the jurisdiction of the arbitral tribunal in
the same arbitral tribunal, questioning the competence or
jurisdiction of the arbitral tribunal, can the arbitral tribunal
rule on that matter considering that its own jurisdiction is
being questioned?
The arbitral tribunal may rule on its own jurisdiction,
including any objections with respect to the
existence or validity of the arbitration agreement.
For that purpose, an arbitration clause which forms
part of a contract shall be treated as an agreement
independent of the other terms of the contract. A
decision by the arbitral tribunal that the contract is
null and void shall not entail ipso jure the invalidity
of the arbitration clause. (art. 16, par 1)
When should the parties question the jurisdiction of the
arbitral tribunal?
A plea that the arbitral tribunal does not have
jurisdiction shall be raised not later than the
submission of the statement of defense. A party is
not precluded from raising such a plea by the fact
that he has appointed, or participated in the
appointment of, an arbitrator. A plea that the
arbitral tribunal is exceeding the scope of its
authority shall be raised as soon as the matter
alleged to be beyond the scope of its authority is
raised during the arbitral proceedings. The arbitral
tribunal may, in either case, admit a later plea if it
considers the delay justified.
Suppose the claimant had already presented his claim
whereas the respondent has not yet presented his statement
of defense, at that stage the claimant in addition to the
presentation of his statement of claim also questions the
 ALTERNATIVE DISPUTE RESOLUTION reviewer by MARX
jurisdiction of the arbitral tribunal, is that the proper stage of
the proceedings where that particular question on the
jurisdiction should be raised by the claimant?
Yes, because the law requires before the
presentation of defense
Suppose the claimant did not raised that objection and later
on, raised that objection after the respondent presented his
defense, is that action of the claimant still within the process
to question the jurisdiction of the tribunal?
No, because the law requires before the
presentation of defense, if the question of
jurisdiction is raised after the presentation of
defense, it is deemed a waiver to question the
jurisdiction
On what issues during the arbitration proceedings may the
arbitral tribunal exercise discretion in resolving an issue
raised?
• Validity of arbitration agreement
• Acts beyond its jurisdiction
• Question of jurisdiction
Suppose the arbitral tribunal make a rule on the validity of a
particular arbitration agreement submitted by the parties for
resolution, and its resolution was that the arbitration
agreement was null and void, can it include the entire
document?
An arbitration clause which forms part of a contract
shall be treated as an agreement independent of the
other terms of the contract. (art. 16 par 1)
What is excluded?
The arbitration clause is not a part of the arbitration
agreement in case the arbitral tribunal declared the
arbitration agreement null and void
Why?
Because the contract itself involves many issues like,
place of arbitration, subject matter etc while the
arbitration clause only one issue the parties have
agreed to go to arbitration
Suppose there is a ground for the arbitral tribunal or the court
to consider that the arbitration clause on an issue that is null
and void?
The arbitration clause will be invalidated, while the
invalidity of the arbitration clause is prefer from the
invalidity of declaration of nullity of arbitration
agreement
When should the arbitral tribunal resolve issues regarding
jurisdiction?
The arbitral tribunal may rule on a plea referred to in
paragraph (2) of this article either as a preliminary
40
question or in an award on the merits. If the arbitral
tribunal rules as a preliminary question that it has
jurisdiction, any party may request, within thirty
days after having received notice of that ruling, the
court specified in article 6 to decide the matter,
which decision shall be subject to no appeal; while
such a request is pending, the arbitral tribunal may
continue the arbitral proceedings and make an
award.
There is a period within which the question of jurisdiction be
resolve that is before the submission of the statement of
defense
Can it be done motu propio by the arbitral tribunal?
No, it is necessary that a party should raised such
question. The arbitral tribunal is presumed to have
jurisdiction
Thru what ways may arbitral tribunal resolve or exercise its
resolution?
• Decide it as preliminary question
• In the form of an award
If the arbitral tribunal resolves the issue as preliminary
question, is it final?
No, the parties may go to court within 30 days from
the receipt of such resolution
In that particular case, if the parties do not agree to the
resolution as a preliminary question as decided by the arbitral
tribunal, suppose the court upheld the resolution of the
arbitral tribunal, can the parties file a petition for review to
the higher court?
No, because the Model Law provides that it shall
subject to no appeal
Suppose the tribunal did not resolve the issue and rendered
an award resolving such issue that it has jurisdiction, can the
parties question that in court?
Yes, provided that falls within the grounds to
question permitted in the arbitration
What ground?
The arbitral tribunal acted in excess of jurisdiction
If an award was rendered resolving that particular issue of
jurisdiction and the parties did not go to court, what is the
consequence?
The question on the jurisdiction will become final
 ALTERNATIVE DISPUTE RESOLUTION reviewer by MARX
Under the domestic law, is there a ground to appeal were the
arbitral tribunal over rule such objection of jurisdiction were
there is now an award?
Yes, it can be questioned on the ground of question
law
If during the arbitration proceedings, the parties are worried
of the safety of their documentary exhibits and other
properties which were subjected for inspection, can the
arbitral tribunal issue a protection order?
Yes, (art.17)
Can it issue an order to protect the interest of both parties?
Yes
Can it require a party to post a bond?
Yes
What is the purpose of that bond?
The bond will answer to any damages incurred by
the party against whom the interim protection order
was requested
Are the parties entitled to notice?
Yes, Immediately after the arbitral tribunal has made
a determination in respect of an application for a
preliminary order, the arbitral tribunal shall give
notice to all parties of the request for the interim
measure, the application for the preliminary order,
the preliminary order, if any, and all other
communications, including by indicating the content
of any oral communication, between any party and
the arbitral tribunal in relation thereto. (art. 17c)
What is the consequence if the parties are not given notice?
The parties may set aside whatever action that the
arbitral tribunal may held because the parties are
entitled to equal treatment and they must be given
an equal opportunity to present their case
How should the proceedings be conducted?
The proceedings may be conducted either orally,
written or partly oral partly written. The proceedings
are controlled by the agreement of the parties
Is there a difference between the procedures and
requirements under the Domestic law concerning the
resolution of arbitration issues from the model law?
Under the domestic law, fairness and equity
Is the arbitral tribunal under the Domestic law compelled to
resort to any law?
No, but the arbitral tribunal may resort to any
substantive law
41
Can the parties suggest to what substantive law they may
resort to under the domestic law?
Yes, although under the domestic law the measure
of judgment is the sense of equity and fairness of the
arbitrator, that particular sense should be based also
on the relevant law of the land
How about under the model law, is that the same measure?
The parties may agree to any substantive law that
may be utilized by the arbitral tribunal in resolving
their dispute
Is that required to be used by the parties?
Yes
Suppose there is none?
It shall be the arbitral tribunal that will consult the
substantive law
In the absence of any suggestions from the parties, what is
next law in line?
The law of the place where the proceedings is being
conducted based on the conflict of laws
If it fails to resolve an issue based on conflict of law, what is
the next law in line?
Usage of trade existing in the same area
Article 28. Rules applicable to substance of dispute
(1) The arbitral tribunal shall decide the dispute in
accordance with such rules of law as are chosen by
the parties as applicable to the substance of the
dispute. Any designation of the law or legal system
of a given State shall be construed, unless otherwise
expressed, as directly referring to the substantive
law of that State and not to its conflict of laws rules.
(2) Failing any designation by the parties, the arbitral
tribunal shall apply the law determined by the
conflict of laws rules which it considers applicable.
(3) The arbitral tribunal shall decide ex aequo et bono or
as amiable compositeur only if the parties have
expressly authorized it to do so.
(4) In all cases, the arbitral tribunal shall decide in
accordance with the terms of the contract and shall
take into account the usages of the trade applicable
to the transaction.
If the parties have agreed to submit a substantive law that
would resolve the dispute submitted to the arbitral tribunal, is
there an obligation to resolve the dispute based on that
substantive law?
Yes
 ALTERNATIVE DISPUTE RESOLUTION reviewer by MARX
Can it deviate and instead resolve the issue based on conflict
of laws?
No
What is the difference between the domestic law and model
with respect to the law that will be utilize in the resolution of
a dispute?
• Domestic Arbitration Law – the arbitrators are given
the power to resolve the dispute using their own
sense of equity, fairness and justice, no law is
involved; the parties are prohibited suggesting what
law should the arbitrator use
• Model Law - the arbitrators have to resort to the
substantive law of the state involve, in the absence
of the substantive law conflict of laws, in the
absence of both usage of trade; the parties are
allowed to suggest that law that should be resorted
by the arbitral tribunal
Where is the place of arbitration under the Model law?
The parties are free to agree on the place of
arbitration. Failing such agreement, the place of
arbitration shall be determined by the arbitral
tribunal having regard to the circumstances of the
case, including the convenience of the parties.
Notwithstanding the provisions of paragraph (1) of
this article, 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. (art. 20)
When can the arbitral tribunal adopt as a measure to select a
certain place where the arbitration proceedings will be held?
• Convenience of the parties
• circumstances of the case
• convenience for the purpose of
o for hearing witnesses,
o experts or
o the parties, or
o for inspection of goods,
o other property
o or documents
o arbitral tribunal
When the commencement of the proceedings under the
Model law?
Unless otherwise agreed by the parties, the arbitral
proceedings in respect of a particular dispute
commence on the date on which a request for that
dispute to be referred to arbitration is received by
the respondent. (art. 21) (The same with domestic
arbitration)
42
The receipt of the notice by the respondent will commence
the arbitration proceedings but the arbitration proceedings
will not commence formally because the arbitral tribunal has
not yet been constituted yet.
When should the arbitral tribunal is supposed to be created?
When the parties appointed the arbitrators and
when the arbitrators accepted their appointment.
Can the parties agree on the language to be used?
The parties are free to agree on the language or
languages to be used in the arbitral proceedings.
Failing such agreement, the arbitral tribunal shall
determine the language or languages to be used in
the proceedings. This agreement or determination,
unless otherwise specified therein, shall apply to any
written statement by a party, any hearing and any
award, decision or other communication by the
arbitral tribunal. (art. 22)
The arbitral tribunal may order that any documentary
evidence shall be accompanied by a translation into the
language or languages agreed upon by the parties or
determined by the arbitral tribunal.
Should there be always a presentation of evidence under the
Model Law?
No, the parties can agree that no evidence can be
presented
How should the arbitral tribunal resolve the dispute if the
parties agreed not to present evidence?
Such resolution will be based on the agreed facts,
points of issues of the parties and oral arguments
Article 23. Statements of claim and defense
(1) Within the period of time agreed by the parties or
determined by the arbitral tribunal, the claimant
shall state the facts supporting his claim, the points
at issue and the relief or remedy sought, and the
respondent shall state his defense in respect of
these particulars, unless the parties have otherwise
agreed as to the required elements of such
statements. The parties may submit with their
statements all documents they consider to be
relevant or may add a reference to the documents
or other evidence they will submit.
(2) Unless otherwise agreed by the parties, either party
may amend or supplement his claim or defense
during the course of the arbitral proceedings, unless
the arbitral tribunal considers it inappropriate to
allow such amendment having regard to the delay in
making it.
 ALTERNATIVE DISPUTE RESOLUTION reviewer by MARX
Article 24. Hearings and written proceedings
(1) Subject to any contrary agreement by the parties,
the arbitral tribunal shall decide whether to hold oral
hearings for the presentation of evidence or for oral
argument, or whether the proceedings shall be
conducted on the basis of documents and other
materials. However, unless the parties have agreed
that no hearings shall be held, the arbitral tribunal
shall hold such hearings at an appropriate stage of
the proceedings, if so requested by a party.
(2) The parties shall be given sufficient advance notice
of any hearing and of any meeting of the arbitral
tribunal for the purposes of inspection of goods,
other property or documents.
(3) All statements, documents or other information
supplied to the arbitral tribunal by one party shall be
communicated to the other party. Also any expert
report or evidentiary document on which the arbitral
tribunal may rely in making its decision shall be
communicated to the parties.
During the arbitration proceedings the claimant failed to
appear despite notice, what should the arbitral tribunal do?
The claimant fails to communicate his statement of
claim in accordance with article 23(1), the arbitral
tribunal shall terminate the proceedings or
dismissed the case; (art 25a)
During the arbitration proceedings the respondent failed to
appear despite notice, what should the arbitral tribunal do?
The respondent fails to communicate his statement
of defense in accordance with article 23(1), the
arbitral tribunal shall continue the proceedings
without treating such failure in itself as an admission
of the claimant’s allegations; (art 25b)
What if the evidence of the claimant is inadequate, what
should the arbitral tribunal do?
Dismiss the case
What if the claimant appears but did not present evidence,
what should the arbitral tribunal do?
Dismiss the case
What if the evidence of the claimant and the defense of the
respondent is inadequate, what should the arbitral tribunal
do?
Dismiss the case
Both parties did not appear, what should the arbitral tribunal
do?
Dismiss the case, on the ground of lack of interest
and failure to prosecute
43
ADR13
Under the Model law, the parties are given the right to
stipulate the law that the arbitral tribunal should use in
deciding the issue, can the same parties use that right to
indicate the law that will determine their dispute under the
Domestic Arbitration law?
Under the Domestic Arbitration Law, the parties are
not allowed to stipulate that the arbitrators should
decide on the basis of the law because under the
Domestic Arbitration Law, the arbitrators should
decide based on their own sense of equality, fairness
and justice.
On what matters ____ of experts needed under the Model
Law?
When the resolution of the issues needs technical
expertise.
Unless otherwise agreed by the parties, the arbitral
tribunal:
(a) May appoint one or more experts to report
to it on specific issues to be determined by
the arbitral tribunal;
(b) May require a party to give the expert any
relevant information or to produce, or to
provide access to, any relevant documents,
goods or other property for his inspection.
(art 26 par. 1)
Can the experts be subpoenad to testify after they had been
engaged as an expert?
Yes, unless otherwise agreed by the parties, if a
party so requests or if the arbitral tribunal considers
it necessary, the expert shall, after delivery of his
written or oral report, participate in a hearing where
the parties have the opportunity to put questions to
him and to present expert witnesses in order to
testify on the points at issue. (art. 26 par 2)
How is the arbitral tribunal decide on the issue under the
Model Law?
In arbitral proceedings with more than one
arbitrator, any decision of the arbitral tribunal shall
be made, unless otherwise agreed by the parties, by
a majority of all its members. However, questions of
procedure may be decided by a presiding arbitrator,
if so authorized by the parties or all members of the
arbitral tribunal. (art. 29)
 ALTERNATIVE DISPUTE RESOLUTION reviewer by MARX
In the award that is going to be rendered which contain the
majority vote of the arbitrators, should there be a need to
indicate the absence of an arbitrator?
Yes, 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. (art. 31)
In determining the issue submitted by the parties to an
arbitral tribunal, what law should they consult?
Article 28. Rules applicable to substance of dispute
(1) The arbitral tribunal shall decide the dispute in
accordance with such rules of law as are chosen
by the parties as applicable to the substance of
the dispute. Any designation of the law or legal
system of a given State shall be construed,
unless otherwise expressed, as directly referring
to the substantive law of that State and not to
its conflict of laws rules.
(2) Failing any designation by the parties, the
arbitral tribunal shall apply the law determined
by the conflict of laws rules which it considers
applicable.
(3) The arbitral tribunal shall decide ex aequo et
bono or as amiable compositeur only if the
parties have expressly authorized it to do so.
(4) In all cases, the arbitral tribunal shall decide in
accordance with the terms of the contract and
shall take into account the usages of the trade
applicable to the transaction.
Which law of the conflict of laws should be used?
The law determined by conflict of laws
Suppose the conflict of laws of a particular state did not
determine the law, what law should be used?
Usage of trade of the state where the arbitration
proceedings is being held
Are they allowed to state their findings or resolutions of
dispute in form of a judgment?
Yes, the award is a judgment of that arbitral tribunal
Should that be in writing?
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. (art. 31)
Are the parties entitled to notice of that?
Yes
44
Suppose the arbitral tribunal could not determine what is the
usage of trade of that particular country neither can define
any law that would determine the issue and neither that the
conflict of law of that particular country to determine the law,
can the arbitral tribunal act as amicable compositeur?
Yes, the arbitral tribunal shall decide ex aequo et
bono or as amicable compositeur only if the parties
have expressly authorized it to do so. (art.28 par 3)
What is the difference between amicable compositeur from
normal function of arbitral tribunal?
The amicable compositeur become a negotiating
panel whereby they facilitate the negotiations of the
parties and come up with a resolution based on
equity and impartiality
During the proceedings the arbitral tribunal was able to
convince the parties to settle the matter based on the
principle of equity, impartiality and independence, and the
parties accepted that settlement prior to the rendition of the
award, what should be the status of that settlement in
relation to the award that the tribunal is suppose to render?
If, during arbitral proceedings, the parties settle the
dispute, the arbitral tribunal shall terminate the
proceedings and, if requested by the parties and not
objected to by the arbitral tribunal, record the
settlement in the form of an arbitral award on
agreed terms. (Art.30 par 1)
What is the effect of that settlement on the merits of the
case?
An award on agreed terms shall be made in
accordance with the provisions of article 31 and shall
state that it is an award. Such an award has the same
status and effect as any other award on the merits of
the case. (Art.30 par 2)
It ends the dispute of the parties
When there is an award that puts finality on the resolution of
the merits of the dispute, does it ends the proceedings?
Yes If, during arbitral proceedings, the parties settle
the dispute, the arbitral tribunal shall terminate the
proceedings and, if requested by the parties and not
objected to by the arbitral tribunal, record the
settlement in the form of an arbitral award on
agreed terms. (Art.30 par 1)
Are the parties entitled to the right to enforce immediately
that particular award?
Not yet, there is a need for recognition of the award
by the court
 ALTERNATIVE DISPUTE RESOLUTION reviewer by MARX
When there is no need for the award to be recognized and to
be enforced?
When the parties comply with the award
Within what period should the parties recognize and enforce
the award?
Within 30 days upon the receipt of the award, a
petition for recognition of the award should be filed
When an award is rendered before the expiration of the
period of 30 days, is that binding already with the parties?
Yes
Even without recognition and enforcement, the parties are
still bound to respect the award
Suppose there are discrepancies or errors committed in the
award, can it be corrected?
Yes
Can the arbitral tribunal motu propio correct the error?
Yes, the arbitral tribunal may correct any error of the
type referred to in paragraph (1) (a) of this article on
its own initiative within thirty days of them date of
the award. (art. 33 par 2)
Suppose the tribunal did not correct the error?
Within thirty days of receipt of the award, unless
another period of time has been agreed upon by the
parties:
(a) a party, with notice to the other party, may
request the arbitral tribunal to correct in
the award any errors in computation, any
clerical or typographical errors or any errors
of similar nature;
(b) if so agreed by the parties, a party, with
notice to the other party, may request the
arbitral tribunal to give an interpretation of
a specific point or part of the award.
If the arbitral tribunal considers the request to be
justified, it shall make the correction or give the
interpretation within thirty days of receipt of the
request. The interpretation shall form part of the
award. (Art. 33 par 1)
Aside from the part of the obligation on the part of the
arbitral tribunal if there is a petition by the parties to correct
the errors. In cases of errors in computation of amounts
supposed to be awarded to the parties, is that also subject of
correction?
Yes, correction of errors include typographical,
clerical and computations
45
What other matter that the arbitral tribunal may correct?
Interpretations and additional award
Who should initiate for the interpretation?
Either of the parties
Who should initiate for an additional award?
The aggrieved party
If a party files a motion for an interpretation, of what matter
should that be covered?
Issues that have been resolve
What happens if the parties did not ask for interpretation of
an issue?
If there is no interpretation of a certain issue, such
issue should remain as it is.
The purpose of interpretation is to clarify doubts
Who should determine whether the resolution is clear or not?
The parties
Who should claim for additional award?
Unless otherwise agreed by the parties, a party, with
notice to the other party, may request, within thirty
days of receipt of the award, the arbitral tribunal to
make an additional award as to claims presented in
the arbitral proceedings but omitted from the
award. If the arbitral tribunal considers the request
to be justified, it shall make the additional award
within sixty days. (art. 33 par. 3)
Is it subject to an opposition by the other party?
Yes, on the ground that the additional award sought
was not a part of the resolution of the issue or such
additional award is not a part of the agreement in
the agreement to arbitrate which is a subject of
arbitration or such award is already included in the
award rendered.
Are the parties given the right to question the award?
Yes
Are they given the right to set aside the award?
Yes
Article 34. Application for setting aside as exclusive
recourse against arbitral award
(1) Recourse to a court against an arbitral award may be
made only by an application for setting aside in
accordance with paragraphs (2) and (3) of this
article.
(2) An arbitral award may be set aside by the court
specified in article 6 only if:
 ALTERNATIVE DISPUTE RESOLUTION reviewer by MARX
a. the party making the application furnishes
proof that:
i. a party to the arbitration
agreement referred to in article 7
was under some incapacity; or the
said agreement is not valid under
the law to which the parties have
subjected it or, failing any
indication thereon, under the law
of this State; or
ii. the party making the application
was not given proper notice of the
appointment of an arbitrator or of
the arbitral proceedings or was
otherwise unable to present his
case; or
iii. the award deals with a dispute not
contemplated by or not falling
within the terms of the submission
to arbitration, or contains
decisions on matters beyond the
scope of the submission to
arbitration, provided that, if the
decisions on matters submitted to
arbitration can be separated from
those not so submitted, only that
part of the award which contains
decisions on matters not
submitted to arbitration may be
set aside; or
iv. the composition of the arbitral
tribunal or the arbitral procedure
was not in accordance with the
agreement of the parties, unless
such agreement was in conflict
with a provision of this Law from
which the parties cannot derogate,
or, failing such agreement, was not
in accordance with this Law; or
b. the court finds that:
i. the subject-matter of the dispute is
not capable of settlement by
arbitration under the law of this
State; or
ii. the award is in conflict with the
public policy of this State.
(3) An application for setting aside may not be made
after three months have elapsed from the date on
which the party making that application had
received the award or, if a request had been made
under article 33, from the date on which that
request had been disposed of by the arbitral
tribunal.
(4) The court, when asked to set aside an award, may,
where appropriate and so requested by a party,
46
suspend the setting aside proceedings for a period of
time determined by it in order to give the arbitral
tribunal an opportunity to resume the arbitral
proceedings or to take such other action as in the
arbitral tribunal’s opinion will eliminate the grounds
for setting aside.
What agreement refers in the Model Law that would make
the award invalid and a ground to set aside?
The agreement to arbitrate
What are the grounds?
Parties:
• a party to the arbitration agreement was
under some incapacity
• the said agreement is not valid under the
law to which the parties have subjected it
or, failing any indication thereon, under the
law of this State
• the party making the application was not
given proper notice of the appointment of
an arbitrator or of the arbitral proceedings
or was otherwise unable to present his case
• the award deals with a dispute not
contemplated by or not falling within the
terms of the submission to arbitration, or
contains decisions on matters beyond the
scope of the submission to arbitration
• the composition of the arbitral tribunal or
the arbitral procedure was not in
accordance with the agreement of the
parties
Suppose, one of the parties raised an issue against the award
butt he court did not find any ground to set aside the award,
can the court motu propio set aside the award based on other
grounds?
Yes, on the ground of the subject-matter of the
dispute is not capable of settlement by arbitration
under the law of this State or the award is in conflict
with the public policy of this State
When is the finality of the arbitral award under the Model
law?
30 days from the receipt of the award; the parties
can file a motion for recognition and enforcement
2 enforcements:
• Enforced where the arbitral award was rendered
• Enforced in the State where the arbitral award is to
be enforced
 ALTERNATIVE DISPUTE RESOLUTION reviewer by MARX

Let say the award was rendered in London and it is to be

enforced in the Philippines, when should the receipt of that
award in London file a motion for the enforcement of that
award?
Within 30 days from the receipt of the award

Where should he file such motion?

In the state where the award is to be enforced

If the other party respected that award, is there a need to file

a motion?
No need

Within what period can u file a motion to set aside the

award?
Within 3 months

Under the Model law, he award does not become final under
after the lapse of 30 days, because in the period of 90 days,
the party can file a motion to set aside the award

When is the finality of that award?

After the lapse of 90 days if there is no motion to set
aside

What is the relevance of the 30 day period?

To file a motion for recognition and enforcement

What is the consequence of the failure to file a recognition

and enforcement?
Waiver of the right to file such motion

What is the presumption of failure to file a motion?

The other party complied with the award or the
prevailing party condoned the issue

When there is a motion for recognition and enforcement of

the arbitration award, is the other party entitled to notice?
Yes, because so that the other may oppose such
recognition or enforcement on the ground of
incapacity based on the law of where the arbitration
award was rendered or based on the law where the
award is sought to be enforced on the ground that it
is against public policy.

ADR14

Where do the convention on the recognition and

enforcement of foreign arbitral awards apply?
http://www.jus.uio.no/lm/un.arbitration.recognition.and.enf
orcement.convention.new.york.1958/doc.html

47