FINALS

Question 1

Arbitration?

Answer 1

*voluntary dispute resolution process in which one or more arbitrators, appointed in accordance with the agreement of the parties, or rules promulgated pursuant to this Act, resolve a dispute by rendering an award.
*R.A. 876 authorizes arbitration for domestic disputes.
*R.A. 9285 further institutionalized the use of alternative dispute resolution systems, including arbitration, in the settlement of disputes.
*It requires consent from both parties in the form of an arbitration clause that preexisted the dispute or a subsequent submission agreement.

Question 2

KEY FEATURES

Answer 2

*Party autonomy - As provided in the state policy under the ADR Act, parties to an arbitration agreement have the freedom to make their own terms and arrangement on resolving conflicts.

*Equal treatment and fairness of parties — Article 18 of the 1985 UNCITRAL Model Law provides that parties are to be treated with equality and each party shall be given a full opportunity of presenting his/her case.

*Ease of enforcement — Although arbitral institutions and arbitrators do not have coercive powers like regular courts, awards can be imposed in accordance with the procedures to which the parties consented to be subjected to. Likewise, the limited grounds to refuse and set aside arbitration awards assures parties that these awards can still be enforced with ease.

Question 3

TYPES OF ARBI

Answer 3

• State-state arbitration
• Investor-State arbitration
• Ad-hoc arbitration
• Institutional arbitration
• Legislated arbitration
• Construction arbitration
• Commercial arbitration
• Domestic arbitration
• International commercial arbitration

Question 4

International Arbitration when ?

Answer 4

1985 UNCITRAL Model Law, an arbitration is international if:
i. the parties to an arbitration agreement have, at the time of the conclusion of that agreement, their places of business in different States;

ii. one of the following places is situated outside the State in which the parties have their places of business:
1. the place of arbitration if determined in, or pursuant to, the arbitration agreement;
2. 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;

iii. the parties have expressly agreed that the subject matter of the arbitration agreement relates to more than one country.

Question 5

Seat of arbi?

Answer 5

• The seat of arbitration is the legal home of arbitration.
• it does not necessarily mean the physical place where the arbitration proceedings will take place.
• What is contemplated as the seat of arbitration is the place of which laws will apply to the arbitration proceedings.
• It will determine the court that has the power to interfere in the arbitration proceedings

Question 6

MATRiX AWARD: Foreign Arbi

Answer 6

S: Outside country of enforcement

K: Award outside PH

L: NY conv & ADR act

R: Refusal to award under Sp. ADR rules

Question 7

MATRiX AWARD: International Arbi

Answer 7

S: Inside country of enforcement

K: Awards in International comm Arbi in PH

L: UNCITRAL model law & ADR act

R: Setting aside under Sp ADR Rules

Question 8

MATRiX AWARD : DOMESTIC Arbi (dom)

Answer 8

S: in country of enforcement

K: Domestic Arbi Awards

L: Arbi Law & ADR law

R: vacation under special ADR Rules

Question 9

MATRiX AWARD : DOMESTIC Arbi (ciac)

Answer 9

S: in country of enforcement

K: CIAC Arbi Awards

L: Construction industry arbi law

R: Appeal under rule 43 of ROC ….SC held that- awards by CIAC goes directly to SC

Question 10

Elements of arbi

Answer 10

1. Submission to Arbi
2. Seat
3. Arbitral Rule
4. # of Arbitrators
5. Language
6. Governing Law

Question 11

Arbi agreement

Answer 11

 is the basis of an Arbitrator’s jurisdiction and mandate.
 It is an agreement by the parties to submit to arbitration all or certain disputes which have arisen or which may arise between them in respect of a defined legal relationship, whether contractual or not
 may be in the form of an arbitration clause in a contract or in the form of a separate agreement.
 Art. 7 of the 1985 UNCITRAL Model Law - arbitration agreement shall be in writing

Question 12

venue of arbi

Answer 12

where it will physically take place

Question 13

diff between Abri and Court

Answer 13

ARBI: proceeding is contractual and less formal in nature .
The parties are bound by the rules that are agreed upon between them and the arbitral tribunal derives its authority to resolve the dispute from the parties’ consent. are confidential and must not be published as compared to court

COURT: Court litigation is a much more technical process wherein a Judge takes cognizance of a case between
parties. litigation wherein the court records are open for public scrutiny.

Question 14

advantages of arbi vs court lit

Answer 14

Compared to court litigation, arbitration is generally faster and more cost efficient. The parties can choose the place of arbitration and the venue of the proceedings.

arbitration awards are not appealable on the merits since the parties agreed on how they should resolve their dispute.

In court litigation, the parties may
appeal on the merits

Question 15

who may be arbitrators

Answer 15

o any person appointed to serve as an arbitrator must be of legal age, in full enjoyment of his/her civil rights and knows how to read and write.
o No person appointed to serve as an arbitrator shall be related by blood or marriage within the sixth degree to either party to the controversy.
o No person shall serve as an arbitrator in any proceeding if he/she 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.
o No party shall select as an arbitrator any person to act as his/her champion or to advocate his/her cause

Question 16

Arbi vs mediation

Answer 16

arbi has an award mediation doesnt

Question 17

Institutional Arbitration vs Ad hoc

Answer 17

institutional arbitration is more predictable due to the fact that the parties are briefed in advance regarding the conduct of the proceeding, venue, and appointment of the tribunal.

the parties will have more control over the cost of the arbitration (as they are not subject to the fee schedule of an arbitration center) or over the proceeding itself (as they can agree to their own rules),

Question 18

how long is arbi proceedings ?

Answer 18

insti = 6mons to 1 yr
ad hoc = 1 or 2 yrs

Question 19

Requirements for an Arbitration Agreement to be valid and enforceable?

Answer 19

(1) It must be in writing;
(2) It must be signed by the parties or their respective agents.

Question 20

Is there a need for a separate Arbitration Agreement besides the arbitration clause provided for in a contract?

Answer 20

NO. ADR Act of 2004 provides that an arbitration agreement can be in the form of an arbitration clause in a contract or in a separate agreement

decision that the contract is null and void will not necessarily lead to the invalidity of the arbitration clause.

Question 21

What if there is a unilateral or optional clause in a contract that provides for the right to choose Arbitration? Is such clause enforceable?

Answer 21

Yes. Such clause is not expressly prohibited in Philippine
ADR Laws. As such, as provided for by the principle of party autonomy under Sec. 2 of the ADR Act, an arbitration agreement giving one party the right to choose arbitration is likely to be forceable.

Question 22

Can a third party who is not a signatory in the contract with an Arbitration Agreement, be impleaded the arbitration proceedings?

Answer 22

No. As a rule, an arbitration agreement is consensual contract which is binding only between the contracting parties.

Civil Code: Contracts take effect only between the parties, their as signs and heirs , xpt in cases where the rights and obligations arising from the contract are not transmissible by their nature, or by stipulation or by provision of law.

PWEDE: signatory si 3rd party

Question 23

Does the Statute of Limitations apply to Arbitration proceedings?

Answer 23

Yes since right to arbitrate arises from a written contract. Proceedings must be commenced within ten years from the date the right to institute arbitration arises under the written contract between the parties to the dispute.

tho law does not specifically proved for a limitation period

Question 24

What are the statutes which apply to Arbitration proceedings?

Answer 24

1. Civil Code of the Philippines;
2. R.A. No. 876 otherwise known as the Arbitration Law;
3. R.A. No. 9285 otherwise known as the Alternative Dispute Resolution Act of 2004; and
4. Supreme Court’s A.M. No. 07-11-08-SC 01 September 2009 or the Special Rules of Court on Alternative Dispute Resolution

Question 25

What are the grounds for the vacation of a Domestic Arbitration Award?

Answer 25

1. The arbitration award was procured through corruption, fraud or other undue means;
2. There is evidence of partiality or corruption in the arbitral tribunal or any of its members;
3. The arbitral tribunal was guilty of misconduct or any form of misbehavior that has materially prejudiced the rights of any party;
4. One or more of the arbitrators was disqualified to act as such under the law and deliberately refrained from disclosing this disqualification;
5. The arbitral tribunal exceeded its powers, or imperfectly executed them, so that a complete, final and definite award on the subject matter submitted to them was not made;
6. The arbitration agreement did not exist, is invalid of is otherwise unenforceable; and
7. A party to arbitration is a minor or a person judicially declared to be incompetent.

Question 26

remedies available to a party who questions the jurisdiction of the Arbitral Tribunal in determining a dispute?

Answer 26

A party questioning the jurisdiction of an arbitral tribunal can apply to the Court for judicial relief with regard to the existence, validity and enforceability of the arbitration agreement.

However, the Court is not allowed to rule on issues affecting the tribunal’s credibility and competence. As provided for by Rule 9.4 of the Special Rules of Court on Alternative Dispute Resolution, the Court must allow the arbitral tribunal the first opportunity to rule on such issues.

Question 27

Principle of Kompetenz- Kompetenz?

Answer 27

Kompetenz-kompetenz is a jurisprudential doctrine outlining the authority of the arbitral tribunal in ruling on the question of whether or not it has established jurisdiction over a dispute before intervention by the courts

Question 28

May the existence, validity or enforceability of an Arbitration Agreement be raised as one of the issues in a prior action before the same or another court?

Answer 28

NO. THIS IS FORUM SHOPPING. As provided for by Rule 3.9 of the Special ADR Rules, a petition for judicial relief under said Rule may not be commenced when the existence, validity or enforceability of an arbitration agreement has been raised as one of the issues in a prior action before the same or another court

Question 29

Can the parties resort to Arbitration even after the commencement of Court proceedings on their dispute?

Answer 29

YES. Special ADR Rules, if there is no existing arbitration agreement at the time the case was filed in Court, but the parties subsequently entered into an arbitration agreement, they may request the court to refer their dispute to arbitration at any time during the proceedings.

Question 30

RELEVANCE : Seat of Arbi

Answer 30

The Seat of Arbitration is significant in order to determine to which governing laws the arbitration proceedings will be subject to. Notably, the seat of arbitration is different from the physical place of the arbitration. The seat of arbitration will dictate the rules and regulations to which the procedures will be anchored on

(DETERMINES: Nature / Law/ Extent of Court Authority )

Question 31

What happens when the arbitrator appointed dies or withdraws his appointment as arbitrator while the proceeding is ongoing?

Answer 31

substitute arbitrator shall be appointed in accordance with the rules that apply to the appointment of the arbitrator being replaced.

Question 32

Basic Principles on Arbi

Answer 32

• Finality of Award
• Court Enforcement

Question 33

Finality of Award: Principle

Answer 33

Parties surrender their right to have the merits decided by the courts in favor of an arbitral tribunal. The court does not have the power to change the merits of the case.

Question 34

Court enforcement : Principle

Answer 34

Arbitrators do not have the power to order the enforcement of their awards. To enforce an award, the winning party must petition the court to enforce it.

Question 35

Exemptions/Non-Arbitrable Subject Matters

(Sec. 6, Chap. 1, R.A. 9285)

Answer 35

a) labor disputes covered by Presidential Decree No. 442, or the Labor Code of the Philippines, as amended and its Implementing Rules and Regulations;

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, e.g.. VAWC under RA 9262. SH under RA 7877

Question 36

Form of an Arbitration Agreement

Answer 36

*An arbitration agreement shall be in writing.

*writing if it is contained in a document signed by the parties or in an exchange of letters or other means of telecommunication which provide a record of the agreement, or in an exchange of statements of claim and defense in which the existence of an agreement is alleged by one party and not denied by the other.

Question 37

Principle of Separability of Arbitration Clause

Answer 37

• “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.”

Question 38

Pathological clauses

Answer 38

• Pathological clauses are used to identify arbitration clauses that contain defect(s). When stipulations are ambiguous, incomplete, unclear or contrary, such clauses are created.

Question 39

who may submit to arbi?

Answer 39

• Natural persons/individuals with capacity to contract
• Juridical entities
• States/state entities

Two or more persons or parties may submit to arbitration by one or more arbitrators any controversy existing between them at the time of the submission and which may be the subject of an action; or the parties to any contract may in such contract agree to settle by thereafter arising between them.

Question 40

Party Disqualifications to a Domestic Arbitration and Exceptions

Answer 40

• A controversy cannot be arbitrated where one of the parties to the controversy is an infant, or a person judicially declared to be incompetent,
• unless the appropriate court having jurisdiction approved a petition for permission to submit such controversy to arbitration made by the general guardian of guardian ad litem of the infant or of the incompetent.

Question 41

Multi-Party Arbitration

Answer 41

• When a single arbitration involves more than two parties,
• the IRR of the ADR Act plus Equal Treatment of Parties and Determination of Rules of Procedure as the arbitral tribunal shall deem appropriate to address possible complexities of a multi-party arbitration.
• When a claimant includes persons who are not parties to or otherwise bound by the arbitration agreement, directly or by reference as claimants or respondents
• The additional respondents shall be deemed to have consented to their inclusion in the arbitration unless, they object on a date not later than the date of communicating their answer the request for arbitration.

Question 42

Consolidation of Proceedings and Concurrent Hearings

Answer 42

*The parties and the arbitral tribunal may agree that:

• the arbitration proceedings shall be consolidated with other arbitration proceedings; or
• concurrent hearings shall be held, on such terms as may be agreed.

*Unless the parties agree to confer such power on the arbitral tribunal, the tribunal has no power to order consolidation of arbitration proceedings or concurrent hearings.

Question 43

What is an Arbitrator / Arbitral Tribunal?

Answer 43

An Arbitrator is the person appointed to render an award, alone or with others, in a dispute that is the subject of an arbitration agreement.

An Arbitral Tribunal refers to the body of three (3) arbitrators in accordance with the agreement of the parties.

Question 44

Submission to Arbi

Answer 44

Considering that a key attribute of Arbitration is party autonomy, the foremost element that must be reflected in an Arbitration Agreement is the intention of the parties to submit the dispute to an arbitration.

Question 45

Language of Arbi

Answer 45

• Auto: English / Filipino
• Can be agreed upon by parties

Question 46

HEARING & WRITTEN PROCEEDINGS

Answer 46

Conduct of pre-bearing conference

Terms of reference

Procedural order Evidentiary Hearing

Statement of Claims & Defense

Evidentiary hearing

Parties Closing Memorials

Question 47

TERMINATION OF PROCEEDINGS

Answer 47

• withdrawal of claim
• agreement of parties
• continuation unnecessary

-unpaid required deposits

• no further motion