Other Forms of ADR (2) It can be a continuation of mediation, neutral or

1. Neutral evaluation- the parties submits their dispute in early neutral evaluation or any other ADR
order for a neutral person to determine facts and also process
the events and what happened.
*one of the processes where parties can do the
What rule shall govern? method w/o the existence of a neutral person.
(1) the agreement of the parties (agreement to use an The reason why there is a mini trial is because
institution). When parties appoint or designate an this is usually used in a company or a
institution which has internal rules on neutral corporation wherein the panel will consist of
evaluation, then that internal rules is considered written Senior Executives with decision-making power.
in the contract They are authorized to decide for or in behalf of
the corpo
*Opinion is not binding. The parties may reject or
accept the recommendation by the neutral evaluator. *one the evidence is presented, the senior
Once the parties accepted the assessment or the executives on both sides are tasked to, after
evaluation then, that acceptance is also with the hearing the presentation, to negotiate, decide
acceptance of making it public. Otherwise, the how to resolve a dispute. This kind of system is
agreement to adopt the neutral evaluation will be popular in other countries because corporations
classified as confidential. don’t want to engage in litigation. Relationships
are important in the commercial setting.
Then, what happens when there is a violation of the *The provisions of mediation are applicable to all other types
agreement? The neutral party can enforce the same of ADR even in arbitration, as long as it will not run counter on
taking into account that it has been approved and the method itself.
binding between the parties.
3. Med-arb- two step dispute resolution process involving
2. Mini-trial- should be governed by the rules agreed upon mediation, and if unsuccessful will be followed by
by the parties and in the absence that rules the ff shall arbitration.
follow: *two-step process only when the issues are
(1) It shall be conducted under the separate unresolved. If the parties are already happy with the
dispute resolution system mediation process, there’s no need for arbitration
anymore because there’s no more issue to be taken
 cognizance of. But if the issue is unresolved, then you
can go to arbitration. Is conciliation defined under the said law? ​NO
*there must be consent between the parties. Hence,
they must agree that there is a mediation, and if it fails, What is arbitration? ​Voluntary process wherein parties select
arbitration. the arbitrators. The dispute between the parties is resolved by
rendering an award.
Why is it that the parties agreed that there would be
mediation then arbitration? ​Because at the end of Why is it called other forms of ADR?
the day, you have to remember that psychologically, Mediation is the main, and other forms of ADR does
parties if they are already in dispute, they would not not include mediation. Any other system which is not called
want to enter into any other agreement. So this would mediation is called “other”.
assure them that if mediation will not be successful, at
least there is a neutral person who will actually decide Important things to remember in other forms of ADR
for them, and will be binding. - Definition

*A person who acted as a mediator cannot act as Role of Lawyers

an arbitrator unless there is a written consent given
by the parties that such mediator can sit as an International Commercial Arbitration
arbitrator. Reason: question of impartiality and - Applicable law is UNCITRAL Model Law in
independence. International Commercial Arbitration
- These are matters arising in relationships whether
What is the definition of mediation under RA 9285? contractual or not
- Voluntary process in which a mediator, selected
by the disputing parties, facilitates Kinds of relationships/transactions
communication and negotiation, and assists the
parties in reaching a voluntary agreement When is communication deemed received? ​If it is delivered
regarding a dispute. to the addressee either to the place of business, address, etc.

What is the distinction between mediation & conciliation *Last known address
under RA 9285? ​No distinction. When we speak of mediation,
we also talk about conciliation. They are interchangeable.
Note: the UNCITRAL Model Law has been adapted in the Ph, Confidentiality of Arbitration Proceedings
meaning it has now become a local law.
These are the evidence and the record during the
When is RA 9285 applicable? proceedings. The Arbitral award is not confidential in nature.
- It is applicable only if the place and sit of arbitration is
Exceptions:
in the Ph.
(1) with the consent of the parties, or
Legal Representation in International Commercial
Arbitration (She will ask this question in the exam) (2) for the limited purpose of disclosing to the court of
relevant documents in cases where resort to the court is
In the concept of 9285 when the seat is only in the Philippines.
allowed herein.
If the arbitration is conducted outside of the Philippines is
called ​Foreign Arbitration​. Extent of Court Intervention:

Who can represent the parties? The court cannot and shall not intervene (UNCITRAL Model
Law)
General Rule: A party may be presented by any person of his
choice so long as admitted to the practice of law in the Exceptions:
Philippines.
When there is an issue on the validity as to its jurisdiction and
XPN​: Not authorized to appear as counsel in any Philippine as well as the authority to sit as a tribunal on the issue which
court, or any other quasi-judicial body whether or not such is covered under the Special Rules of Court.
appearance is in relation to the arbitration in which he
appears. 4 Instances where interim measure is available:

Why is it that only lawyers are permitted to represent in Appointing Authority

arbitration?
The ​person or ​institution named in the arbitration
Under the Rules of Court, any person cannot represent in a agreement who will appoint the arbitrator;
court unless he is admitted to the Bar.
or the regular arbitration institution under whose rules the (b) The parties are free to agree on a procedure of appointing
arbitration is agreed to be conducted. the arbitrator or arbitrators, subject to provisions of
paragraphs (d) and (e) of this Article.
Who is the Arbitrator?
(c) Failing such agreement:
1. Those named in the agreement.
(i) in an arbitration with three (3 ) arbitrators, each party shall
2. If parties failed to name one, in the domestic arbitration, appoint one arbitrator, and the two (2) arbitrators thus
the default appointing authority is the President of the IBP. appointed shall appoint the third arbitrator; if any party fails to
appoint the arbitrator within thirty (30) days of receipt of a
In the Commercial Arbitration, if the Appointing authority fails
request to do so from the other party, or if the two (2)
or refuse to act within 30 days from the receipt of the request
arbitrators fail to agree on the third arbitrator within thirty days
to arbitrate the following, the court can act as the Appointing
(30) days of their appointment shall be made, upon request of
Authority:
a party, by the appointing authority;
a. determination of the arrangement to resolve dispute
(ii) in an arbitration with a sole arbitrator, if the parties are
unable to agree on the arbitrator, he/she shall be appointed,
b. appointment of arbitrators and challenge procedure
upon request of a party, by the appointing authority.
c. interim
(d) Where, under an appointment procedure agreed upon the
parties,

Composition of the Arbitral Tribunal (i) a party fails to act as required under such procedure, or

The parties are free to determine the number of arbitrators (ii) the parties , or two arbitrators, are unable to reach an
Failing such determination, the number of arbitrators shall be agreement expected of them under such procedure, or
three (3).
(iii) a third party, including an institution, fails to perform any
Article 4.11. ​Appointment of Arbitrators. (a) No person shall function entrusted to it under such procedure,
be produced by reason of his/her nationality from acting as an
Any party may request the appointing authority to take the
arbitrator, unless otherwise agreed by the parties.
necessary measure to appoint an arbitrator, unless the
agreement on the appointment procedure provides other Place of Arbitration
means for securing the appointment.
The parties are free to agree on the place of arbitration.
Atty. Higuit:
Failing such agreement, the place of arbitration shall be in
Article 11 -15 of the UNCITRAL Model law states the Metro Manila, unless the arbitral tribunal, having regard to the
procedure on an international commercial arbitration circumstances of the case, including the ​convenience of
appointment of Arbitrators. the parties shall decide on a different place of arbitration.

What is the jurisdiction of the Arbitral Tribunal? Note: It should be in the Philippines, otherwise, RA 9285 shall
not be applicable.
Article 4.16(a): The arbitral tribunal may rule on its own
jurisdiction, including any objections with respect to the Rules Applicable to the substance of the Dispute
existence or validity of the arbitration agreement or any
condition precedent to the filing of the request for arbitration. Parties are free to agree
This is what the model law is saying that the limitation of the
If no agreement, arbitral tribunal shall apply the law
court.
determined by the Conflict of Laws
Interim measure (or Protective Measure)
Arbitral tribunal shall decide base on the terms of the contract
The reason for this are: and shall take into account the usages of trade applicable to
the transaction. It may decided based on ex eaquo et bono or
1. to prevent irreparable loss or injury: as amiable compositeur.

2. to provide security for the performance of any obligation; ex eaquo et bono – ​means “fairness, justice, equity”

3. to produce or preserve any evidence; or amiable compositeur – ​an authority given to the arbitral
tribunal to derogate from strict compliance of the law if the
4. to compel any other appropriate act or omission. result or application of the law will create injustice to the
parties​. ​Such is only applied when there is an agreement
between the parties.
Conduct of Arbitration Proceedings Setting aside of the Award – ​means the party is
questioning an award. Magkaiba ang domestic, foreign
It is important to determine the forms and content in order to arbitral award, and international Commercial award.
know which laws will applpy and under whose jurisdiction
shall it govern. THESE GROUNDS ARE EXCLUSIVE:

Termination Proceedings 1. The arbitral proceedings are terminated by the final award
or by an order of
When the award has been given, the authority or the
mandate of the tribunal shall be automatically exterminated the arbitral tribunal in accordance with paragraph (2) of this
except when there is clarification, typographical errors or article.
mathematical error needs to be made.
2. The arbitral tribunal shall issue an order for the termination
Correction, interpretation and Additional Award of the

RA 9285 does not say that the award shall automatically be arbitral proceedings when:
binding. The period of the award, in addition to the
interpretation, there is a lapse of 30 days from the receipt of (a) the claimant withdraws his claim, unless the respondent
the award unless another period is agreed upon by the objects thereto and
parties.
the arbitral tribunal recognizes a legitimate interest on his part
Additional Award in obtaining

If the parties have agreed to award on the ​four issues, the a final settlement of the dispute;
additional award is when the award was issued, only ​three
(b) the parties agree on the termination of the proceedings;
issues was resolved, last was left behind. Parties can actually
ask to resolve for this one. Parties can do this because the
(c) the arbitral tribunal finds that the continuation of the
mandate has not yet been terminated and hence, can still
proceedings has
reconvene and issue the award for this one.
for any other reason become unnecessary or impossible.
As far as the fifth issue to be resolved, such act is not
allowed, because it is not part of their mandate.
3. The mandate of the arbitral tribunal terminates with the 2 Kinds of Award:
termination of the
Convention and non convention​. The only difference is, one is
arbitral proceedings, subject to the provisions of articles 33 issued in a country who is actually a signatory to the New
and 34 (4). York Convention.

Note​: Issu When an international commercial arbitration is conducted in

the Philippines, the arbitrator or the tribunal will issue an
The limitation on the application of RA 9285 award. The award is called the ​international commercial
arbitration award. When international commercial arbitration
Article 2035 of the Civil Law provides what are not
is conducted outside the Philippines, when the award issued
subject of compromise:
is going to be executed and enforced in the philippines, we
call it ​foreign arbitral award.
Article 2035. No compromise upon the following questions
shall be valid:
Q​: parties in their agreement stated that in case there is a
dispute, parties will go through the process of arbitration.
(1) The civil status of persons;
Disputes happen. One party sent a request for arbitration but
(2) The validity of a marriage or a legal separation; the other party refused. Can arbitration proceed?

(3) Any ground for legal separation; A​: Yes. (Note the concept of default) As long as the claimant
can present the statement of a claim, then the arbitration will
(4) Future support; continue despite the fact of the resistance on the part of the
other party. The other party has already consented to go
(5) The jurisdiction of courts; through the process of arbitration. When you consent to go
through the process of arbitration, it also includes the consent
(6) Future legitime. (1814a)
in accordance with RA. 9285.
(7) Additional by Atty. Higuit: award is in conflict of the public
Q​: How to reconcile art. 7 with art. 16 Chapter 4 of
policy of the Philippines.
UNCITRAL Model law
Reason: such seat of arbitration is in the Philippines.
Otherwise, it will never be enforced.
Art. 7 “..an arbitration agreement maybe in the form of an - Failure or impossibility to act
arbitration clause in a contract or in the form of a separate - Decision making; determination (?)
agreement.”
If parties made an agreement differently from the interim
Art. 16 “.. For that purpose, an arbitration clause which forms measures, parties may request provisional relief on the
part of a contract shall be treated as an agreement following grounds:
independent of the other terms of the contract.”
a) to prevent irreparable loss or injury
A​: For the art. 16, take note that the clause will be considered b) to provide security for the performance of obligation
or treated as an independent agreement merely referring to a c) to produce, preserve an evidence
separability clause. For example, the principal contract was d) to compel any other appropriate act or omission
declared invalid or not valid by the court, your arbitration
agreement would still exist.
COMPOSITION OF ARBITRAL TRIBUNAL
But for art. 7, it merely provides the different kinds of
arbitration agreement which can be in the form of a clause,
- parties are free to determine the number of arbitrators
incorporated in the contract or in a separate agreement which
- failing such determination, there shall be arbitrators
means the submission of agreement in another document.
Minimum requirements to be an arbitrator:
DOMESTIC ARBITRATION
> ​If international (ICA):
Q​: What law governs the Domestic Arbitration?
- no qualifications or disqualifications
A​: It shall be continued to be governed by Republic Act 876
as amended by Republic Act 9285 or the Philippine > ​if conducted in ph (Domestic)​:
Arbitration Law of 2004
- must be of legal age
New provisions in RA 9285 amending RA 876: - must be in full enjoyment of civil rights
- knows how to read and write
- arbitration agreement and substance of ... before court
- not related by blood or marriage within 6th degree to
- number of arbitrators upon ..(?)
either party to the controversy
- Grant of challenge
- Challenge procedure
 - no financial, fiduciary or other interest in the Exceptions to the jurisdiction:
controversy or cause to be decided
- no personal bias which might prejudice the right of any ● the arbitration agreement which is inexistent and void
party to a fair and impartial award or unenforceable is not binding
● dispute is under the jurisdiction of the courts or
Appointing Authority quasi-judicial body
● dispute is not arbitrable
- If parties fail to appoint an arbitrator within 30 days of ● arbitration agreement is inexistent
receipt of the request to do so from the other party, or if
the two arbitrators fail to agree on the third arbitrator
within 30 days following their appointment, the
appointment shall be made upon request of a party ​BY CONDUCT OF ARBITRATION
THE COURT or the ​IBP PRESIDENT in accordance
As to the place— ​Parties are free to agree, if there’s
with IRR.
no agreement, then in Metro Manila unless otherwise
The decision to be made by the appointing authority provided under the domestic arbitration
shall immediately be executory and it shall not be
Q​: Who will determine the place of arbitration if the
subject to appeal or motion for reconsideration
parties failed to designate the place?
Grounds to challenge appointment of arbitrators:
A: ​The arbitral tribunal, taking into account the nature
● conflict of interest of the case, the convenience of the parties to the
● failure to meet qualifications dispute (excluding non party participants)
● circumstances which will question his partiality or
Correction, interpretation, additional award
independence
- award can only be corrected, not on the substance or
reason but only for mathematical or typographical
JURISDICTION OF ARBITRAL TRIBUNAL errors.
- as to the interpretation, this is only the explanation as
- appointment of the arbitrators. They can resolve their to how the award is implemented
own qualifications
Recognition and enforcement of award of domestic ● those which by law cannot be compromised
arbitration

- there are awards issued in the Philippines but their

classification are actually not domestic but rather, when PROCEDURE OF ARBITRATION
they are brought before a different state, it changes as
-Arbitration is commenced when the respondent received the
to the nature of the award, it becomes foreign to them.
request for arbitration from the claimant
Hence, the need for recognition.
-if one party defaults in answering the demand, the aggrieved
Vacation of award of domestic arbitration
party may file in the clerk of court of the RTC having
>​ ​Grounds: jurisdiction of the parties. This only refers to the enforcement
of the arbitration agreement
*same with grounds under IAC
Q: what happens if one party immediately files a case before
a court? Will the court dismiss the case for not having
jurisdiction?
R.A. 876
A: If in violation of the arbitration agreement, the other party
Limitations of RA 876: can demand that the party who filed the case to go through
arbitration. But in the meantime, the case filed before the
- Infant (minor)
court will be “stayed”. The court will suspend the hearing, wait
- person judicially declared to be incompetent
for the award or resolution of arbitration before it will proceed.
This is the ​STAY OF CIVIL ACTION.
-as amended by RA 9285, now includes:
Important provisions in RA 876:
● labor disputes
● civil status of persons
> issuance of subpoena
● validity of marriage
● any ground for legal separation - Arbitrators do not have the power to enforce
● jurisdiction of courts subpoena. They must ask assistance of the court
● criminal liability
● future legitimes
Reminders:

*Compare grounds in RA 9285 and RA 876

*take note of the award procured by corruption, undue means

etc.

*next session: special rules of court

*memorize: the issues subject to the special rules of court