Philippine Institute of Arbitrators

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JURISDICTION, POWERS AND DUTIES OF
AN ARBITRAL TRIBUNAL
by

MARIO E. VALDERRAMA LLB, FCIARb, FHKIArb, FPIArb

ADR Adviser to the Construction Industry Arbitration Commission
CIArb Approved Tutor
CIAC, PDRCI & WESM Arbitrator
Contact Details
Tel No 367 4001; Telefax 362 1867
Mobile 0917 4114 594
E-mail <marval.law@gmail.com>
 SOURCES OF THE POWERS OF AN
ARBITRAL TRIBUNAL

Agreement (Powers Conferred by the Parties)

Law (Powers Conferred by Law)

Implied Powers (Powers that may be Implied from

Law and/or Agreement)
 SOURCES OF THE POWERS OF AN
ARBITRAL TRIBUNAL: LAW

Law governing the arbitration agreement

Law governing the arbitration (lex arbitri)

 SOURCES OF THE POWERS OF AN
ARBITRAL TRIBUNAL: AGREEMENT

Express Agreement (Direct Conferment) in

arbitration agreement, terms of appointment.

Agreement as to Procedure (Indirect Conferment)

Ad Hoc Rules, e.g. the Uncitral Rules

Institutional Rules
 POWERS COMMONLY GIVEN TO AN
ARBITRAL TRIBUNAL

To direct the procedure for the arbitration and to

decide that procedure in the event of disagreement
between the parties (MAL Art. 19).
To determine the applicable law and the seat (MAL
Arts. 20 and 28)
To determine the place (venue) (R.A. 9285 Sec. 30).
To determine the language of the arbitration (MAL
Art. 22, R.A. 9285 Sec. 31).
To require the production of documents (and draw
adverse inferences if they are not produced)
 POWERS COMMONLY GIVEN TO AN
ARBITRAL TRIBUNAL

To require the presence of witnesses (and draw

adverse inferences if they do not attend)

To administer oaths

To examine the subject matter of the dispute

To appoint experts (MAL Art. 26).

 POWERS COMMONLY GIVEN TO AN
ARBITRAL TRIBUNAL
To issue orders intended to preserve evidence
and/or assets (interim measures of protection; MAL
Art. 9; R.A. 9285 Secs. 28 and 29).

To order security for the costs of the arbitration

(MAL Art. 17).

NOTE: The parties may deny most of those powers

from the tribunal.

NOTE: An arbitral tribunal has no imperium

 DUTIES OF ARBITRATORS: SOURCES

Duties imposed by the parties

Duties impose by law

 DUTIES OF ARBITRATORS: THOSE
IMPOSED BY THE PARTIES
Safe way: Look at the specific duties in the terms of
appointment, including any particular rules
applicable to the appointment.

Examples: time frame to issue award; site

inspections; signing declarations of independence;
period within which the tribunal must meet for its
first session; drawing up of terms of reference and
time frame to do so.
 DUTIES OF ARBITRATORS: THOSE
IMPOSED BY LAW
Duty to act with due care

Duty to act promptly (MAL Art. 14)

Duty to act judicially

Ethical duties

Others: to decide all procedural and evidentiary matters;

to treat the parties fairly; make the award in a particular
form
 REMEDIES

Challenge the arbitrators (MAL Art. 12).

Financial liabilities (R.A. 9285 Sec. 5).

Providing grounds to vacate the award, refuse

confirmation, refuse recognition, refuse
enforcement. (MAL Art. 34 & 36; Convention Art. 5).

Query: Are rules/provisions providing for immunity

valid?
 REMEDIES

Use of Arbitration to Further Criminal Purposes, e.g.

money laundering, bribery (active if instigated by an
individual or passive if instigated by an arbitrator)
and corruption.

What the arbitrator should do.

 JURISDICTION OF AN ARBITRAL
TRIBUNAL

Source: agreement between the parties. Also, the

tribunal may only validly resolve those disputes that
the parties agreed that it should resolved.

Challenges to jurisdiction:

Partial Challenge

Total Challenge
 CHALLENGES TO THE JURISDICTION
OF AN ARBITRAL TRIBUNAL

Autonomy of Arbitration Clause (MAL Art. 16)

Who decides? Kompetenz kompetenz (MAL Art. 16)

Court Control (Concurrent control)

 CHALLENGES TO THE JURISDICTION
OF AN ARBITRAL TRIBUNAL
Options of the Tribunal (MAL Art. 16).
Decide that it has no jurisdiction

Note: This is appealable under the Special Rules Rule

3.12).
Issue an interim award on jurisdiction
Note: Party should request for a full dress hearing on the
issue of jurisdiction. A summary hearing may result to a
finding that the tribunal has, prima facie, jurisdiction. In
the latter case, it may be necessary to adduce evidence to
prove otherwise.
Defer decision and join the issue to the merits
Note: No MR, no appeal allowed (Special Rules Rule 3.20).
 CHALLENGES TO THE JURISDICTION
OF AN ARBITRAL TRIBUNAL
Options of the Respondent
Boycott the arbitration generally not adviseable

Raise the objections in the tribunal (observe the

time line in MAL Art. 4: w/out undue delay)

Go to court (MAL Art. 8 re arbitrations that are null

and void, inoperative or incapable of being

performed. But see Rule 3.8).
Challenge the award (MAL Arts. 34 and 36;
Convention Art. 5).
 CHALLENGES TO THE JURISDICTION
OF AN ARBITRAL TRIBUNAL
Suggested Course of Challenger

Raise the objections in the tribunal

If unsuccessful: make the necessary reservation

and participate in the arbitration

If unsuccessful on the merits: challenge the award

by using either the active or passive remedies.
 CHALLENGES TO THE JURISDICTION
OF AN ARBITRAL TRIBUNAL
Warnings:

Per Special Rules: Failure to avail of active remedy

may bar passive remedy (see Rule 12.2).
For one reason or another, elevating a positive
ruling re jurisdiction to the court would likely be
unsuccessful as the Special Rules prescribes
deferment to the competence of the arbitral
tribunal (Rule 3.8) and would most likely apply the
prima facie rule (Rule 3.11).
 JURISDICTION, POWERS AND DUTIES
OF AN ARBITRAL TRIBUNAL
QUESTIONS?
Comments and suggestions, critical,
adverse or otherwise, welcomed.
I would love to hear from you if you noticed
any error or omission, or if you have any
suggestion on how to improve, this
presentation.
E-mail to marval.law@gmail.com. Visit our
website at <www.philippinearbitrators.org>.
 WANT TO KNOW MORE?
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Philippine Institute of Arbitrators

c/o Atty. Mario E. Valderrama
Tel. No. (632) 367 4001
Mobile 0917 4114 594
E-mail: marval.law@gmail.com