Search Legislative Action:
Special domestic legislation passed the
Alternative Dispute Resolution Reviewer
Midterms.
ALTERNATIVE DISPUTE RESOLUTION
By. Atty. Gabriel Robeniol
Chapter 1: Introduction
Historical Rule:
Judicial and Legislative trends:
Utilization of alternatie means and
methods implemented in or outside the
court trial system
Civil Code of the Philippines:
30 August 1950
Contains provisions of/or on
compromise arbitration.
Encourages litigants to agree upon fair
compromise and authorize arbitration
19 June 1953
Enactment of arbitration law
Republic Act. 876
20 May 1965
Convention on the recognition and
enforcement of foreign arbitration /
arbitral awards
Philippine law has acknowledged the international arbitration
dispute.
UNCITRAL
Model law which the Philippines
committed its adherence.
Judiciary Action
Response of Judiciary to the Problems
of Delay.
Requirements of conducting pre-trial
conference
Utilization on different modes of
discovery
Proscription against forum shopping
The supreme court encourages the use of arbitration through Philippine Mediation
Commission or through Judicial Dispute Resolution
prescription of arbitration, mediation and
conciliation.
G:
Labor Code of the Philippines
National Labor Relations Commissions
Concerning:
Unfair Labor Practice
Termination of Employment
Conditions of Employment
Damages arising from E E
Level Arbitration
Executive Branch Contribution:
CIAC Construction Industry Arbitration
Commission Enacted during 4 Feb
1985 concerning constriction dispute
23 August 1998 rules of procedure
governing construction arbitration
19 November 2005 CIAC revised rules
of procedure governing construction
arbitration
22 March 2010 rules on ADR for
dispute between national government
agencies: amicable settlement dipute
THE ADR Act of 2004
Dispute resolution law
An act toasinstitutionalize usecommercial
system of setting of an
alternative dispute resolution system in
the Philippines and to establish the
office for alternative dispute resolution
and for other purpose.
28 April 2004
Philippines as the Venue of ICA
RTC must refer to arbitration in proper case
Foreign Arbitral awards must be confirmed by RTC
The RTC has jurisdiction to review foreign arbitral a
Grounds for judicial review different in Domestic and
(JDR)
RTC Decisions of assailed foreign arbitral awards a
The Lawyers Role
Contribute to the promotion of ADR
Assist courts in encouraging the parties
to avail of alternative means of dispute
resolution
Explain the benefits of the ADR system.
Chapter 2: Fundamentals of Alternative
Dispute Resolution
Alternative Dispute Resolution
Expeditious and speedy manner
Methods of resolving dispute outside the
court trial system
Includes similar process in quasi
judicial agencies
Any process the used to resolve a
dispute or controversy
Neutral third party
State Policy in ADR
ADR act of 2004 declared the state
policy
Promote party autonomy resolution of
dispute
Freedom of the party to choose or make
their own arrangement to resolve
dispute
Provides solutions that is less time
consuming, less confrontational
procedure of goodwill and lasting
friendship
Wave of the future in international
relationship
Principles of ADR
Promotion of party autonomy and self
determination in dispute resolution
Recognition of ADR as an efficient tool
and an alternative procedure for the
resolution of cases
Enlisting a private sector participation
Objectives and Benefits of ADR
Speedy and impartial justice
Declogging of court dockets.
Features of ADR
ADR means used to resolve a dispute or
controversy
Exceptions: intention is to cause delay
or suspend the proceeding
ADR utilize means and methods allowed
by law
ADR is contractual in nature
ADR avoids court trial
ADR usually involves the participation of
neutral third party
Sources of ADR
Domestic Laws and Rules
Constitution
Civil Code
Arbitration Law
Acts of the Executive Branch
Decisions of the Supreme Court
International Law : UNCITRAL
General principle of Law and Equity
Forms of ADR
Arbitration arrangement of the and
abiding by the judgment or selected
person in dispute; binding between the
parties
Mediation voluntary agreement
between the parties with the help of third
person to convince them to come into
an agreement; non binding between eh
parties.
Conciliation conciliation of dispute in
an unantagonistic manner
Neutral lawyers are brought to present
the summary of the case
Early Neutral availed of in pre trial
case
Mini trial merits of the case ar
argued in front of a panel
Any combination of the foregoing
Any other ADR forms
Classification of Forms of ADR
As to the number of parties:
Bi party one or two parties
Multi Party two or more
AS to the number of issues involve:
Simple one issues involve
Complex two or more issues
As to the extent of conclusion
Complete all issues involve is resolve
Partial only two or three issues involve
are resolved but not all
As to the role of evidence in the
proceedings
Evidentiary
Non merit based
As to the pendency of the court case
Case related when there is a case
involved
Independent
AS to the applicable law
 Domestic when the place of business
and arbitration is in the Philippines
International when the place of
business involved two states and
arbitration is outside the Philippines
Foreign when the place of business is
outside the Philippines and the
arbitration is outside the Philippines.
As to the permanency of the ADR
provider
AD HOC temporary
Institutional permanent
Components of ADR
Contending parties
Dispute or controversy
Form of ADR
ADR provider or practitioner
Subject matter of ADR
Adversarial dispute and controversy
Exception:
Civil Status of persons
Validity of marriage and any other forms
of legal separation
Jurisdiction of courts
Future legitime
Criminal Liability
In general which the law cannot be
compromise
Basic Concepts of ADR
Concluding Acts or Arguments
Arbitral Award final decision of
arbitration on awarding issue or
controversy
Mediated Settlement agreement
contract executed by the parties
Compromise or compromise agreement
avoidance of litigation or to put an end
to the one already existing
Waiver or quitclaim a statement
renouncing any right or claim
ADR providers or practitioners
Preferences of ADR
Office for ADR
ADR agency attached to DOJ
Executive Director appointed by the
president upon recommendation of
secretary of justice
Chapter 3: Mediation under ADR Act of
2004
Mediation
Voluntary process in which a mediator is
selected by the disputing parties
Facilitates communication and
negotiation
Assist the parties in reaching voluntary
agreement
Court Annexed Mediated
Mediation conducted under the auspices
of the court
Court Referred Mediation
Ordered by the court to be conducted by
the agreement of the parties
Mediator
Person conducting mediation
Mediation Practitioner
Parties in mediation
Non Party participants
Witness, resource person, or expert
Classification of Mediation
Non evidentiary or non merit based
mediated
Focuses on facilitation or
communication and negotiation between
the parties in encouraging to voluntarily
settle dispute
Institutional
Administered and conducted by or
under the rules of mediation institution
Ad Hoc
Other than institutional
To be bound by the internal mediation and the administrat
To have such rules govern the mediation of the dispute an
Place of Mediation
Two disputing parties are free to agree
the place\
In the absence default is convenient to
and appropriate to all the parties
Stages of Mediation
Opening statement of mediator
Individual narration by the parties
Exchange by the parties
Summary issues
Generalization and evaluation of options
Closure
Mediation shall be held in private
Exceptions: Parties consented that there be
other persons
Closed and concluded
Execution of settlement agreement
Withdrawal of any party from mediation
Written declaration
Advantages of Mediation
Confidentiality in Mediation Process
Prompt, economical amicable dispute
resolution
The decision making authority rest upon
the parties
Confidential and Privileged nature of
Mediation Communication
All information of evidence is privileged
and confidential in character
Confidential Information
Any information relative to the subject of
mediation or arbitration
Expressly intended not to be disclosed
Expressly Confidential
Impliedly confidential
Creates reasonable expectations
Confidential Information Includes:
Communication
Oral or Written statements
Pleadings, motions, manifestations
Legal effects of Confidential and
privileged nature
A party may refuse to disclose
Not subject to discovery and
inadmissible in adversarial proceedings
People cannot be compelled to
disclose information
Parties to the dispute
Mediation
Counsel for the parties
Non Party
Secretary, stenographer, assistants
Any persons who obtains information
Continues even the mediator fialed to
act impartially
Mediator may not be called to testify
Exceptions based on agreement, Nature
of Proceedings, Crime or Social Justice
Contained in an agreement evidence by
a record authenticated by all parties to
agreement
Made public or required by the courts to
make it public
A threat or statement of plan to inflict
bodily injury
Communication on attempt to commit a
crime
Used to approve or disprove neglect,
abandonment or exploitation
Used to sought or complaint against
misconduct
Non party base agreement
Exceptions based on Public Policy
Court proceeding involving a crime or
felony
Avoid liability on contracts arising from
mediation
Limited use of External Evidence
Only such portion of the communication
necessary for the application of the
exception can be admitted in evidence
Privileged Mediation
Bound by the confidential privileged
Exception
Termination of mediation
Settlement was reached
Permitted to be disclosed
Waiver of Confidentiality
Expressed
Implied
The Mediator
OADR list and freedom to select
mediators
Withdrawal Requirements
The party requested
Lacks qualifications, training and
experience
Mediators impartiality is in question
Violation of ethical standards
Safety will be jeopardized
Unable to provide effective services
Conflict of interest
Other instances
Duties and Functions of Mediationr
Prior to Mediation
Upgrade professional competencies
Reasonable inquiry
During the Mediation
Confidential
Consent and self determination
Promotion of respect and control of
abuse and process
Mediators Cost and Fees
 Ad Hoc free to make their own
arrangement as to the mediation of cost
and fees
Mediated Settlement Agreement
Compromise Agreement
Successful Mediation
Roles of counsel in Mediation
Collaborative
Encourage
Assist
Confer
Chapter 4: Arbitration in General
Arbitration
Process which one or more arbitrators
appointed in accordance with the
agreement of the parties
It is the arbiter that decides the dispute
and renders an arbitral award to
conclude in arbitral proceedings
Kinds of Arbitration
Voluntary
Reference of a dispute to an impartial
body
Members are chosen by the parties
themselves
Compulsary arbitration
Settlement of labor dispute by the
government agency which has the
authority to investigate
Domestic
International
Foreign
Same concept lang naman to nung nasa
chapter two na foreign domestic at
international dapat alam nyo nay un.
Commercial Arbitration matters arising
from all relationship of commercial in
nature
Policy on Arbitration
Speedy and inexpensive methods
Arbitrator
Person appointed to render an award
May use his own discretion in the
performance of his function
Arbitration agreement
Agreement by the parties
In respect of legal relationship
Essential elements
Consent of the parties freely given
Cause of consideration
Lawful object
Two modes in submitting dispute
Agreement to submit in arbitration
Submission agreement
Arbitration Agreement
Shall be in writing and subscribed by the
parties to be charged
May be included in arbitration clause or
compromise
Arbitration Clause
Must be liberally construed consistent
with the policy of encouraging
alternative dispute resolution method
Doctrine of Separability
Arbitration agreement is independent of
the main contact even if it contained in
Arbitration clause
Due process in Arbitral proceedings
Principles of administrative due process
equally apply to arbitral proceedings
Judicial Review and Court intervention
Proper RTC
Review Court of Appeals Rule 43 ROC
Certiorari proper court Rule 65 ROC
Interim Measures in Arbitration
Allows the application of a party to a
judicial authority for interim conservatory
Allows filing of provisional interim
measures with regular courts whenever
the arbitral tribunal has no power to act
effectively
Chapter 5: International Commercial
Arbitration under the ADR Act of 2004
and its IRR
International Commercial Arbitration
Instances of Occurrence of International
Arbitration
Parties and Places of business is in
different state
Place of arbitration provided in the
agreement where parties have their
business is outside the Philippines
Substantial part of obligation is to be
performed outside the Philippines
Subject matter of agreement relates to
more than one parties
Commercial Arbitration
Commercial relationship in nature
Contractual or not
Foreign Arbitration
 International commercial arbitration is
outside the Philippines
Coverage of IRR Provisions of ICA
Applicable only to international
commercial arbitration
The rules of procedure for international
commercial arbitration provided for
under the ADR act or its IRR may also
be applied for international commercial
arbitration outside the Philippines if they
are adopted as rules of procedure by
the parties in the exercise of their
privileged of party autonomy and self
determination
Default Rules
provisions of the IRR
Applicable only in the absence of or in
default contained in the ff: (1) an
agreement in force between the
Philippines and other state; (2) an
agreement between the parties on the
applicable rules
Rules of Interpretation
Interpretation of the ADR act
due regard to the policy of law favouring
arbitration
Interpretation of the model Law
need for uniformity of its interpretation
Interpretation of the IRR
Same policy
Party autonomy
Freedom of the parties
Reference to an agreement
Rules applicable to claims and counter
claims
Rules of Receipt of Written
Communication in ICA
The subject matter of the dispute may
be located in different stage
Rules communication is deemed
received
Delivered to the address personally or at
his place of business, habitual residence
or mailing address
If there is none, delivery by registered
mail or attempt to deliver to last know
place of business
Waiver of the Rights to Object in ICA
Arbitration is different from mediation in
that the latter is not merit or evidence
based and therefore not procedurally
driven
Limitations
ADR act and its IRR is limited to the
application of rules on the waiver in the
mediation proceedings to wavier of
confidentiality and privilege only
IRR expands the application of the rules
on waiver to include non compliance
with the rules or requirements
Doctrine of Estoppel
Objectives to non compliance with the
rules or any requirements under the
arbitration agreement must be raised
without undue delay or within the time
prescribed therefore, failing which, the
right to object is deemed waived
Estoppel in pais
Happens when one, by his acts,
representation, or admissions, or by his
own silicon when he ought to speak out,
intentionally or culpable negligence,
induces another to believe certain facts
to exist and such belief in a manner that
he will be prejudiced if the former is
permitted to deny the existence of such
facts
Confidentiality in ICA
General Rule
In the case of mediation, proceedings,
records, evidence, and arbitral awards
are confidentia
Exceptions:
Consent of the Parties
Limited purpose of disclosing to the
court relevant documents in cases
where resort to the court is allowe
Due Process in ICA
IRR mandates that the parties shall be
treated equally and shall be given full
opportunity
Reasonable opportunity
Due Process
Complied if parties are given opportunity
to be heard and present evidence
Place if ICA
Default place MANILA
Place chosen by Parties
Commencement of ICA proceedings
Date requested by the parties
 Default date date of request for that
dispute
Language in ICA
Parties shall determine the language
Default English
Applicable Law in ICA
Governing law generally is substantive
law
Substantive Law
Law or legal system applicable to
complete resolution of dispute
Conflicts of Law/Private International
Law
Part of municipal law or state which
directs courts and administrative
agencies, when confronted with a legal
problem involving a foreign element,
where they should apply a foreign law
Appointing Authority in ICA
He person or institution named in the
arbitration agreement
Functions
Take necessary measurements
Decide on the challenge
Consider the qualifications
The default appointment of an arbitrator shall be madequestion
bar of the Philippines.
Arbitrators and Arbitral Tribunal in ICA
Default number of arbitrators is three
and is due to their appointment
Default Procedure
3 arbiter each party shall appoint one
Sole arbiter shall be appointed by the
parties
The decision of the appointing authority
on this matter shall be immediately
executor and shall not be subject to a
motion for reconsideration or appeal
Factors in Appointing Arbitrators
Qualifications
Considerations
Advisability of appointing an arbitrator of
a nationality
Grounds for changeling an Arbitrator in
ICA
Impartiality
Possession of the qualifications
Procedure for the challenge in ICA
Default procedure
Sending of written agreement 15 days
after becoming aware of the constitution
of arbitral tribunal
The parties may request the appointing
authority within 30 days to challenge
tribunals
Procedure incase the Arbitrator fails to
act in ICA
Mandates terminates
Withdraws
Parties agrees in the termination
Jurisdiction of Arbitral Tribunal in ICA
Jurisdiction
The right to act whether or the power to
and authority to hear and determine
cause
Jurisdiction over subject matter
Subject matter of the controversy is
conferred by law
Two Instances
Lack of jurisdiction
Excess of jurisdiction
Jurisdictional review of Jurisdictional
Issue
Consider challenge as preliminary
by the National President of the Integrated
Defer resolution
Jurisdiction over the pArties
Pre causal agreement
Interim Measures in ICA
Request shall be in writing transmitted
by reasonable means
Relieve may be granted to prevent
irreparable loss, security, preserve
evidence, compel
Legal Representation in ICA
A person may be represented by any
person of his choice
Determination of Rules of Procedure
Statement of claims
Statement of Defence
Default of the parties
Amendment of claims or defences
Hearings (1) court assistance in taking
evidence (2) subpoena (3) expert
Conclusion / closure
Requisites for an Arbitral Award to be
Final
 Rendition of the arbitral award Means by which a Philippine courts give
Hearing on the qualification legal acknowledgment to a foreign
Expiration of the periods arbitral award
Cost in ICA Confirmation
Fees on arbitral tribunal Judicial affirmation of a domestic arbitral
Travel award
Cost of expert advice Enforcement
Travel and other expenses of witness Execution and implementation
Cost for legal representation S H AR E T H I S :
Fees and expenses of appointing
authority
Correction and Interpretation of ICA
award
Quantification of the cause and the
determination of the party liable
therefore or the division between the
parties
Correction of typographical and similar
errors initiated by a parties
Interpretation of the awards
Correction of typographical error
initiated by the Arbitral Tribunal
Additional award
Setting Aside an ICA AWARD

Requirements
Default in the arbitration agreement
Violation of due process
Lack or excess of jurisdiction on the part
of the arbitral award
Violation of the arbitration agreement
Venue:
RTC

Requirements
Place of arbitration
Assessed, reviewed or enjoinment is
located
Residence ir place of business
NCR
Time for filing the petition for Setting
Aside
3 mos
90 days

Recognition and Enforcement of Foreign

Arbitral Awards

Recognition