Adr - Palacios eBook

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Professor: Atty. Albert R. Palacios

Transcribers:

Marc Roby de Chavez (MARX)

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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 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
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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

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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 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
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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 SEC. 11. Exceptions to Privilege. 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
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of the award, the court may allow the partyapplicant 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.

(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

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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 nonparticipating 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
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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

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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 pretrial 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 CourtReferred 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 pretrial.
trial provided that the parties jointly requested for it, will it be applicable to mediation?)

(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

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;
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(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
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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

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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 Supposing that even there is a ground of impartiality but the parties continue the proceedings, can the parties remove the mediator? No, the parties deemed waived that ground of impartiality Where should be the place of mediation? The parties are free to agree on the place of mediation. Failing such agreement, the place of mediation shall be any place convenient and appropriate to all parties. Who will prepare the mediation settlement? 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. Who should sign the mediation settlement? The parties and their respective counsels, if any, shall sign the settlement agreement. What should the certification of the mediator contain? The mediator shall certify that he/she explained the contents of the settlement agreement to the parties in a language known to them. In the absence of certification, would there be a completed mediation settlement? None Is the absence of the signature of the mediator in mediation settlement invalidates such mediation settlement? No, for as long as the parties signed the mediation settlement. What should the parties do with the mediation settlement? If the parties so desire, they may deposit such settlement agreement with the appropriate Clerk of a Regional Trial Court of the place where one of the parties resides. Where there is a need to enforce the settlement agreement, a petition may be filed by any of the parties with the same court, in which case, the court shall proceed summarily to hear the
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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.

DIFFERENCE BETWEEN ARBITRATION AND MEDIATION Mediation Mediation settlementAs a rule a mediator cannot make an award but the mediation settlement can be an award provided that it is reduced into writing signed by the parties and their counsel and the mediator. Such mediation agreement can be an award when there is a failure of the parties to comply with the mediation settlement. Such 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. Appointed parties by the Arbitration Arbitral award

Resolution

Appointment of ADR practioners

Appointed by the parties, when the situation falls to an agreement that only one arbitrator to settle their dispute, but in case where the parties agrees to appoint each arbitrator of their own choice, then the 2 appointed arbitrator will rd appoint he 3 arbitrator

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Number of ADR practitioners Intervention of the court Only 1 1 or normally maximum arbitrators The court affirm the award more, the is 3 has to arbitral Suppose A and B executed a contract, wherein B admitted that he owes A 5000php, there is a failure to pay A. A would want to go to arbitration on the basis of that agreement where B admitted that that latter owes the former. Could that be a subject of arbitration? No, because there was no actual controversy, there are no conflicting claims between the parties In that case, B denies that he owes A, is that a subject of 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.

There is no need for the affirmation of the court

Elements of Arbitration • 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 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.
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Wahl vs Donaldon
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

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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. 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
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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

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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.
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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;

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• • • • insurance; joint venture other forms of industrial or business cooperation; carriage of goods or passengers by air, sea, rail or road. 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.

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 quasijudicial 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
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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.
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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.

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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. 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,
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• Evidence supporting the request. 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
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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

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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
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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

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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.
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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

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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. 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



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
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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
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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

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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
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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.

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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
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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

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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
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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

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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. 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
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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. 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.

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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. 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.
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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 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, redirect 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.
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Suppose during the arbitration proceedings party A is represented by Atty. Gerero and party B is represented by Suppose the award is given today, but before the parties received the copy of the award, they file a petition to vacate thereafter. When will be the finality of the award? 30 days from the received of the copy of the award. In arbitration proceedings, although the law says, the board of arbitrators is bound to render an award within 30 days from the closure of the proceeding. That 30-day period is not to be determinative of the finality of the award because the finality of the award after the lapse of 30 days is to be counted not from the date that the award is issued but from the date that the parties received their copy. The reason for that is the parties have the right to file a petition to vacate 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 from the time that the arbitral tribunal or board of arbitrators render the award. 30 days from the receipt of the copy, because the law allows the parties to question the award within that period of 30 days on the ground of vacating the award or modify the award. What is contained in an arbitration award? The award must be made in writing and signed and acknowledged by a majority of the arbitrators, if more than one; and by the sole arbitrator, if there is only one. When should the 3 arbitrators signed the award? If there is a stipulation in the arbitration agreement by the parties, that there is a need for the concurrence of the 3 arbitrators The award will be invalid if there is no compliance in the arbitration agreement that there is a need for the concurrence of the 3 arbitrators, because it is contrary to the agreement of the parties. The agreement of the parties should always be the controlling factor in arbitration. When can an arbitrator be challenge? At anytime before the finality of the award Should the award be given orally? Suppose the award is given orally by the arbitrators at the end of the arbitration proceedings, is that valid? No, it should always be in writing but a decision dismissing the case need not be in form of writing A decision dismissing the case need not be in form of writing because such decision is not an award. What should the award contain? The award must be made in writing and signed and acknowledged by a majority of the arbitrators, if
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Atty. Masilungan. Atty. Masilugan objected to the
interrogation of Atty. Gerero. Should the arbitrators sustain the objection? Can the arbitrators make a ruling in such objections? Sustain the objection and stop the witness in answering the interrogations because the objection is sustained? No, because the rules of evidence do not apply in arbitration, the arbitral tribunal considers submission of all documentary evidences regardless of they are objectionable or not subject to its determination of the relevancy or materiality. The arbitrators can only make a ruling regarding the relevancy and materiality without any reference to the rules of evidence. After the submission of evidences of the parties, is the arbitral tribunal bound to render a settlement? At the close of the hearings, the arbitrators shall specifically inquire of all parties whether they have any further proof or witnesses to present. Suppose the party did not have any further evidences or witnesses, what should the arbitral tribunal do? Upon the receipt of a negative reply from all parties, the arbitrators shall declare the hearing closed unless the parties have signified an intention to file briefs. So if the parties opted to file their briefs, what should the arbitral tribunal do? The hearing shall be closed by the arbitrations after the receipt of briefs and/or reply briefs. When should a brief be filed? Briefs may filed by the parties within fifteen days after the close of the oral hearings When should a reply brief be filed? The reply briefs, if any, shall be filed within five days following such fifteen-day period. When is the board of arbitrators supposed to render a judgment (award)? From the closure of the hearing Is that award final after the arbitral tribunal had rendered an award? When is the finality of the award? No, after 30 days after the closing of the hearings or if the oral hearings shall have been waived

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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
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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.

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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 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
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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.

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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
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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.

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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 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
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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
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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

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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
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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 subjectmatter 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

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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
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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

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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
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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

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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 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
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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 lastknown 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 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
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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
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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

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When should the 2 appointed arbitrators appoint the 3 arbitrator? Within 30 days from their appointment
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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 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.
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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.
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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
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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

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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
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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

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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
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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

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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)
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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.

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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 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)

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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
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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

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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 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:
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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,
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a.

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

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