When was the Phil. Became assignatory of Hague Convention?

The Philippines acceded to the 1980 Hague Convention on the Civil Aspects of International Child
Abduction (Hague Abduction Convention) on March 16, 2016; however, the United States and the
Philippines are not yet treaty partners. Until the Philippines and the United States establish a treaty
relationship per Article 38 of the Convention, parents whose children have been abducted from the
United States to the Philippines or wrongfully retained in the Philippines are unable to invoke the
Convention to pursue their children’s return or to seek access to them.1

The Philippines has "acceded to" the Hague Child Abduction Convention - -which means ratification, for
countries that were not members of the original "Hague Conference" that writes "Hague Convention"
treaties on "private international law" -- i.e. international dealings, such as trade and litigation, between
private parties, not governments. It will the the 94th nation in the treaty. Other members in the
region are Japan, South Korea, Hong Kong, Macao, Singapore, Thailand, Sri Lanka, Australia and New
Zealand.

As U.S. Ambassador Susan Jacobs has pointed out,

"With ten million Overseas Filipino Workers (OFWs) and the rise of bi-national marriages, the
Convention’s importance for the Philippines and its citizens could not be more relevant or urgent. It is
no longer unusual to know an aunt, neighbor, friend, colleague, uncle, sister, or cousin who has had a
child abducted to a foreign country. If you do know someone, my next question may be difficult. Did
that child ever return to the Philippines? The reality is that since the Philippines is not a party to the
Convention, it is not uncommon for abduction cases to remain unresolved for years, resulting in an
often prolonged and painful separation between children and their parents. Philippine citizen parents
currently have limited remedies to seek the return of their children from abroad; this is why joining the
Convention now is of the utmost importance."

Countries that "accede" to a Hague treaty instead of ratifying do not automatically enter a treaty
relationship with other countries in the treaty. The other countries choose whether, and when, to
"accept" that country's "accession" and have a treaty relationship with the newcomer. Without that
bilateral relationship, the Hague Convention does not apply to a case between two countries. The
United States has grown wary of accepting accessions from countries that do not seem equipped to
implement the Hague Convention and actually comply with it, and State Department officials have
reported that they thought some such countries actually acceded to it by mistake, getting it mixed up
with another Hague treaty.

But the United States sounds eager to welcome the Philippines into this treaty. It has sent four
delegations in recent years to work with various government agencies to advocate and prepare for the
treaty to be put into practice there.

1
(n.d.). International Parental Child Abduction | U.S. Embassy in the Philippines. Retrieved from https://ph.usembassy.gov/u-s-citizen-
services/international-parental-child-abduction/

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The Convention will not actually become law for the Philippines until June 1, 2016. On that date it will be
in force between the Philippines and Japan, which has accepted the Philippines' accession. It is the first
and only nation to do so, so far. Later acceptances will be tracked here, on the Hague Conference's web
site.2

When is arbitration international?

Article 1(3) of the UNCITRAL Model Law states that an arbitration is “international” if:

(a) at the time of the conclusion of the agreement, the parties had their places of business in different
states: or

(b)(i) the place of arbitration determined in or pursuant to the agreement is outside the state in which
the parties have their places of business; or

(b)(ii) the place where a substantial part of the commercial relationship is to be performed, or in which
the subject matter of the dispute is most closely connected, is a place outside the state in which the
parties have their places of business; or

(c) the parties have agreed that the subject matter of the agreement relates to more than one
country.3

Advantage and Disadvantage of ADR

Advantages of ADR

Alternative dispute resolution (ADR) procedures have several advantages:

 Reduced time in dispute- It takes less time to reach a final decision.

 Reduced costs in relating to the dispute resolution- It requires less money i.e. it is cheap.
 Flexibility-Parties have more flexibility in choosing what rules will be applied to the dispute. They
have the freedom to do so.
 Produce good results- settlement rates of up to 85 percent.
 Improved satisfaction with the outcome or manner in which the dispute is resolved among
disputants.
 Increased compliance with agreed solutions.
 A single procedure[4]– Parties can agree to resolve in a single procedure a dispute involving
intellectual property.
 Party autonomy- Because of its private nature, ADR affords parties the opportunity to exercise
greater control over the way their dispute is resolved than would be the case in court litigation.

2
(n.d.). International Family Law News & Analysis: Philippines Becomes 94th Country in Sorely-Needed Hague Child Abduction Treaty,
Japan Accepts First. Retrieved from http://familylaw.typepad.com/internationalfamilylaw/2016/04/philippines-becomes-94th-country-in-
hague-child-abduction-treaty-japan-accepts.html
3
(n.d.). When Is An Arbitration An International Commercial Arbitration? | Thomas G. Heintzman and Construction Law Canada. Retrieved
from http://www.constructionlawcanada.com/arbitration/when-is-an-arbitration-an-international-commercial-arbitration/

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 In contrast to court litigation, the parties themselves may select the most appropriate decision-
makers for their dispute. In addition, they may choose the applicable law, place and language of
the proceedings. Increased party autonomy can also result in a faster process, as parties are free
to devise the most efficient procedures for their dispute. This can result in material cost savings.
 Neutrality– ADR is neutral to the law, language and institutional culture of the parties, thereby
avoiding any home court advantage that one of the parties may enjoy in court-based litigation.
 Confidentiality- ADR proceedings are private. Thereby, the parties can agree to keep the actions
confidential. This allows them to focus on the merits of the dispute without concern about its
public impact.
 Finality of Awards- Unlike court decisions, which can generally be contested through one or
more rounds of litigation, arbitral awards are not normally subject to appeal.
 Enforceability of Awards- The United Nations Convention for the Recognition and Enforcement
of Foreign Arbitral Awards of 1958, known as the New York Convention, generally provides for
the recognition of arbitral awards on par with domestic court judgments without review on the
merits. This greatly facilitates the enforcement of awards across borders.
 Preserves relationship- Helps people cooperate instead of creating one winner or one loser.

Disadvantages of ADR

Some disadvantages of alternative dispute resolution are:

 It can be used as a stalling tactic.

 Parties are not compelled to continue negotiations or mediation.
 Does not produce legal precedents.
 Exclusion of pertinent parties weakens final agreement.
 Parties may have limited bargaining power. Parties do not have much of a say.
 Little or no check on power imbalances between parties.
 May not protect parties’ legal rights. The rights of the parties may not be protected by
alternative dispute resolution.
 Your case might not be a good fit[5]– Alternative dispute resolutions resolve only issues of
money or civil disputes. Alternative dispute resolution proceedings will not result in injunctive
orders. They cannot result in an order requiring one of the parties to do or cease doing a
particular affirmative act.
 There are limits to the discovery process– You should also be aware that you are generally
preceding without the protections offered parties in litigation, such as those rules governing
discovery. Courts generally allow a great deal of latitude in the discovery process, which you will
not have in an alternative dispute resolution.
 There is no guaranteed resolution. With the exception of arbitration, alternative dispute
resolution processes do not always lead to a resolution.
 Arbitration decisions are final. With few exceptions, the decision of a neutral arbitrator cannot
be appealed. Decisions of a court, on the other hand, usually can be appealed to a higher court.

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  Participation could be perceived as weakness. While the option of making the proceeding
confidential addresses some of this concern, some parties still want to go to court “just on
principle.”
 The case might not be a good fit-Alternative dispute resolutions generally resolve only issues of
money or civil disputes.
 There are limits to the discovery process-One should also be aware that he is generally
proceeding without the protections offered parties in litigation, such as those rules governing
discovery.4

How to settle Intl Disputes?

For the settlement of an international dispute there are following amicable means:

Negotiation: – The settlement of the international disputes by the disputant states themselves by
negotiation is said to be settlement of the disputes by negotiation. In other words when there a dispute
arises between two or more states then to avoid the chances of war or violence they tends to conduct
negotiation for the matters to be settled. The negotiation is to be taken by the political representatives
of the disputant countries, without involving any third or non-concerned country.

Good-offices: – The act or arrangements taken by a third party to bring disputant parties for negotiation
or to settle dispute between them by any peaceful means is said to be Good-offices. In case of Good-
offices the third merely renders services to bring the disputant parties to peace full means of settlement
of disputes. Here the third party does not give any suggestions or take part in the meetings as to be held
between the disputant parties. Shortly speaking, in case of good offices whenever the parties to dispute
come to peace full of settlement of dispute the duty of the third party finishes.

Mediation: – The act of participating and in the discussions and giving suggestions to settle a dispute
between two parties by a third party is said to Mediation. In other words, mediation is the method to
settle a dispute where any third party actively takes part in the sessions of dialogues or negotiations
held between disputant party as to resolve the dispute. In case of mediation the mediator should
consider the matter of compromise between the parties rather to encourage the strict letter of law.

Inquiry: – The process to ascertain the facts of disputes by a commission of imperial investigators is said
to inquiry. This mean is intended to find out the questions of law and mixed questions of law and fact
involved in a dispute. The only function of the commission is to bring in light those facts, which are the
root cause for the alleged dispute, and to investigate the question of law and mixed questions of law
and fact.

Conciliation: – The process of referring a dispute to a commission; for the purpose of finding out facts
and to prepare a report containing proposals for the settlement of that dispute, is called conciliation. In
case of conciliation the commission is to take two tasks, at first, it shall ascertain the facts of the dispute
and secondly, it shall prepare a report which shall reveal that the possible measures to settle the

4
(n.d.). The Lawyers & Jurists 1 Explain the advantages and disadvantages of alternative dispute resolution’. Retrieved from
https://www.lawyersnjurists.com/article/advantages-disadvantages-alternative-dispute-resolution/

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dispute. But the proposals prepared by the commission have no binding force upon the parties. The
parties can disagree with the proposals.

Arbitration: – The process of referring the dispute; by the mutual consent of the parties to a body of
persons or to a tribunal for a legal decision is called as arbitration. The essential ingredient of arbitration
is the consent of disputant parties to the dispute. In other words, the referring of the dispute to a Court
of Arbitration is dependent on the sweet-well of the parties. International law recognizes a court for
arbitration known as Permanent Court of Arbitration. But in fact it is neither permanent nor a court.

Judicial Settlement: – The process of settling a dispute; by the International Tribunal in the light of the
provisions of International Law, is said to be Judicial Settlement. For Judicial Settlement there is a
judicial organ in international law, known as International Court of Justice. Both the award given by the
arbitration tribunal and decision given by the International Court of Justice are comes in the ambit of
Judicial Settlement. Like in arbitration, in case of referring the dispute to the International Court of
Justice the consent of both the parties are necessary to be given. International Court of Justice shall take
its proceeding in the light of the rules of International law, and its procedure is governed by the a
statute known as the Statute of International Court of Justice. International Court of Justice plays a very
important rule in the settlement of international disputes.

Security Council: – A dispute may be settled by a principal organ of the United Nations, known as
Security Council. The Council is consisted of fifteen members. Five members are permanent while the
remaining ten members are non-permanent members. Wide powers have been entrusted to the Council
for the settlement of the disputes, which tend to endanger world peace and security. There is a number
of measures to be taken by the Council for the settlement of the disputes.

General Assembly: – General Assembly is another principal organ of the United Nations. The Assembly
has no specific means to settle the dispute, rather it has general powers to settle the international
dispute. It has the power to discuss and to suggest better means for the peaceful settlement of the
disputes.

Conclusion: –

Briefly speaking, International Law intends to overcome the chances of war and violence, and believe to
solve the disputes on the merits of political, diplomatic and judicial bases. To avoid the chances of
breaking out of wars it provides certain measures and means. Among which above are the amicable
means to settle the disputes. But international law also recognizes certain coercive or compulsive means
to settle the disputes in extra-ordinary cases where the International peace and security has been
endangered.5

5
(n.d.). MEANS FOR THE SETTLEMENT OF INTERNATIONAL DISPUTES. Retrieved from https://www.legalbites.in/means-settlement-
international-disputes/

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Dispute Settlement Process – ICC of ICA

Unlike other institutions, we monitor the entire arbitral process—from the initial request for arbitration
to scrutiny of the draft final award. If it is necessary to enforce an ICC Award, we can also assist parties
in complying with the required formalities.

The current version of the ICC Arbitration Rules came into force on 1 January 2012 and were revised on
1 March 2017.

Request for Arbitration, Answer to Request, Emergency Arbitrator, Provisional Advance and Joinder of
Additional Parties

The date on which the “Request for Arbitration” is received by the Secretariat of the ICC International
Court of Arbitration, including ICC Global Headquarters in Paris or our regional offices in Hong Kong or
New York (SICANA Inc.), will be deemed the start date of the arbitration.

Article 4: Request for Arbitration

The “Request for Arbitration” is registered on the day it reaches one of the offices of the Secretariat of
the International Court of Arbitration®. “Requests” may be filed either with ICC Headquarters in Paris or
our regional offices in Hong Kong or New York (SICANA Inc).

The Secretary General acknowledges receipt of the “Request” and indicates to the Claimant the names
and contact details of the counsel and other members of the dedicated team in charge of the file.

Article 5: The Answer

As soon as the “Request for Arbitration” is complete and the filing fees are paid, the counsel that has
been assigned the case transmits the “Request” to the other party or parties. It is the party or parties
who must send the “Answer” (or Answers) to the “Request,” together with any counterclaims, within 30
days.

Pleas on Jurisdiction

The arbitration will proceed and the Arbitral Tribunal shall decide such issue—unless the Secretary
General refers the matter to the Court for a decision (Articles 6(3) and 6(4)) where any party:

 does not file an answer;

 raises one or more pleas concerning the existence, validity or scope of the arbitration
agreement; or
 questions whether all of the claims may be determined together in a single arbitration.

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If the Secretary General refers the case to the Court, it will then decide whether and to what extent the
arbitration shall proceed. An arbitration will proceed if and to the extent that the Court is prima
facie satisfied that an arbitration agreement under the Rules may exist (Article 6(4)).

Article 30: Expedited Procedure Provisions

By agreeing to arbitration under the Rules, the parties agree that the Expedited Procedure Provisions
shall take precedence over any contrary terms of the arbitration agreement.

The Expedited Procedure Provisions apply if the amount in dispute does not exceed US$2,000,000 or if
the parties so agree.

The Expedited Procedure Provisions do not apply if:

 the relevant arbitration agreement was concluded before 1 March 2017;

 if the parties have opted out of the Expedited Procedure Provisions; or
 if the Court, upon the request of a party before the constitution of the Arbitral Tribunal or its
own motion, determines that it is inappropriate in the circumstance to apply the Expedited
Procedure Provisions.

The Court may at any time during the arbitral proceedings, on its own motion or upon the request of a
party, and after consultation with the Arbitral Tribunal and the parties, decide that the Expedited
Procedure Provisions shall not longer apply to the case.

Article 29: Emergency Arbitrator Provisions

A party that needs urgent interim or conservatory measures and cannot await the constitution of an
Arbitral Tribunal may apply for emergency relief in accordance with the Emergency Arbitrator
Provisions. The application can be submitted at the same time, before or after the “Request for
Arbitration.” However, no emergency arbitrator shall be appointed after the file has been transmitted to
the Arbitral Tribunal.

The Emergency Arbitrator Provisions do not apply if:

 the relevant arbitration agreement was concluded before 1 January 2012;

 the parties have opted out of the Emergency Arbitrator Provisions; or
 the parties have agreed to another pre-arbitral procedure that provides for the granting of
conservatory, interim or similar measures.

Furthermore, the Emergency Arbitrator Provisions apply only to parties that are either signatories of the
arbitration agreement.

Provisional advance

After receipt of the “Request,” the Secretary General normally requests the Claimant to pay a
provisional advance intended to cover the costs of arbitration until the “Terms of Reference” have been

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drawn up in ordinary cases or until the Case Management Conference when Expedited Procedure
Provisions apply.

The Claimant’s payment is then credited towards its share of the advance on costs. Typically, the Court
and Secretariat will not take any steps in the arbitration, such as towards setting up the Arbitral
Tribunal, until the provisional advance has been paid.

Learn more about Costs and payments.

Article 7, 8, 9: Request for Joinder of additional party, Claims between Multiple Parties and Multiple
Contracts

The Rules allow any party to an arbitration to join any other party, prior to the appointment of
confirmation of any arbitrator. Requests for joinder of a party are similar to Requests for Arbitration
(Article 7).

When a request for joinder is submitted, the additional party becomes a party to the arbitration and
may raise pleas pursuant to Article 6(3) of the Rules. It is important to be aware of the timing for such
joinder, as no additional party may be joined after the confirmation or appointment of an arbitrator—
unless the parties and the additional party agree otherwise.

Setting up the Arbitral Tribunal and fixing the advance on costs

Following receipt of the “Answer(s)” to the “Request” (or the expiration of the time-limit for its receipt),
and the Answer(s) filed by any additional parties joined under Article 7, the Secretary General and/or
the Court may need to take certain decisions to set up the arbitral tribunal.

For example, the Rules require that all arbitrators nominated by parties be confirmed by the Court or
Secretary General (Articles 13 (1) and 13 (2)).

Furthermore, the Court may be required to appoint a tribunal president, sole arbitrator or a co-
arbitrator on behalf of a party that has failed to nominate one (Articles 13 (3) and 13 (4)). The Court may
also need to fix the place of arbitration if the parties have not agreed on a location (Article 18).

In some cases, the Secretary General may decide, under Article 6 (3) of the Rules, to refer a prima
facie jurisdictional question to the Court. This is necessary to consider whether an arbitration agreement
under the Rules may exist and between which parties (Article 6 (4)).

Advance on costs

Usually, before transmitting the case file to the Arbitral Tribunal, the Court fixes the advance on costs in
an amount likely to cover the fees and expenses of the arbitrators and ICC administrative expenses. The
Secretariat transmits the file to the arbitral tribunal—provided the advance on costs requested at this
stage (i.e., the provisional advance mentioned above) has been paid. Generally, the Secretariat will
invite the parties to pay the full advance on costs when it transmits the case file to the Arbitral Tribunal.

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General role of the Secretariat and Court

During this early phase of the arbitration, the Secretariat closely monitors the case. It is always available
to assist the parties with a range of preliminary issues that may come up. Sometimes the resolution of
such issues will require input in the form of a decision from the Court. Other times the Secretariat is able
to deal with the issue itself.

While maintaining strict neutrality, the Secretariat can always be contacted for any questions concerning
the progress of a case. For example, parties may inquire about the status of setting up the Arbitral
Tribunal.

Learn more about ICC International Court of Arbitration.

Transmission of File, Terms of Reference, Case Management Conference

The Arbitral Tribunal is responsible for running proceedings and deciding on the merits of the dispute.

Transmitting the file to the Arbitral Tribunal

Once the Arbitral Tribunal has been constituted and the advance on costs requested at this stage has
been paid, the Secretariat transmits the file to each member of the Arbitral Tribunal (Article 16). From
that time on, general management of the case shifts from the Secretariat to the Arbitral Tribunal.
Accordingly, the parties should correspond directly with the Arbitral Tribunal, while sending copies of
their correspondence and submissions to the Secretariat and other parties.

Once the file has been transmitted to it, the Arbitral Tribunal is responsible for running the proceeding
and deciding on the merits of a dispute. However, the Court and Secretariat maintain a role. They
monitor the arbitral process from start to finish, making sure that cases run smoothly and correctly.
They review the progress of each case to ensure it advances at the right speed and in line with the Rules.

Terms of Reference

In cases where Expedited Procedure Provisions do not apply, as soon as it has received the file from the
Secretariat, the Arbitral Tribunal must draw up a document defining its “Terms of Reference” (Article
23). This is done on the basis of documents or in the presence of the parties and in the light of their
most recent submissions.

As required in the Rules, the Terms of Reference include:

 the full names and description of the parties and arbitrators;

 the place of arbitration;
 a summary of the parties’ respective claims and relief sought; and
 particulars concerning the applicable procedural rules, etc.

They may also contain a list of issues to be determined.

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The Terms of Reference must be completed within two months of the file being transmitted to the
Arbitral Tribunal. If one of the parties refuses to take part in drawing up or signing the “Terms of
Reference,” the latter are submitted to the Court for approval.

Case Management Conference (Article 24)

Also at this stage, the Arbitral Tribunal is required to convene a Case Management Conference and
establish a provisional timetable to be followed in the conduct of the arbitration. The Case Management
Conference is designed to discuss and put in place the best procedure for the arbitration—particularly in
the interests of ensuring time and costs efficiency. Further case management conferences can be held
throughout the case as necessary.

Arbitral Proceedings

The Arbitral Tribunal and the parties shall make every effort to conduct the arbitration in an expeditious
and cost-effective manner

Article 20: Language of the proceedings

If not agreed by the parties, the Arbitral Tribunal determines the language or languages of the
arbitration.

Article 28: Conservatory measures

The Rules provide that the Arbitral Tribunal can order interim or conservatory measures. This does not
affect the parties’ rights, in appropriate circumstances, to apply to any competent judicial authority for
such measures.

Article 21: Law applicable to the merits

In the absence of an agreement between the parties as to the applicable rules of law, the Arbitral
Tribunal applies the rules of law that it determines to be appropriate. In all cases, the Arbitral Tribunal
takes account of the provisions of the contract and the relevant trade usages.

If the parties have agreed to give it such powers, the Arbitral Tribunal may act as amiable compositeur
or decide ex aequo et bono.

Articles 19, 22, 25, 26: Rules of procedure

The ICC Arbitration procedure is very flexible. The parties and arbitrators are free to fix the rules of
procedure, subject to any mandatory provisions that may be applicable. The parties may determine, for
instance, whether and to what extent document production requests or cross-examination will be
allowed. The Arbitral Tribunal proceeds within as short a time as possible to establish the facts of the
case by all appropriate means. The parties have the right to be heard. The tribunal may also decide to
hear witnesses and experts as well as may summon any party to provide additional evidence.

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Article 27: Closing of the proceedings

As soon as the last hearing concerning matters to be decided in an award or the filing of the last
authorised submissions has occurred, the Arbitral Tribunal will declare the proceedings closed with
respect to the matters to be decided in the award. The Arbitral Tribunal will also inform the Secretariat
and the parties of the date by which it expects to submit its draft award to the Court.

Article 31: Time limit for the final award

The Court will, at the outset of a case, fix a time limit for the final award based upon the Arbitral
Tribunal’s procedural timetable. If no such time limit specific to the procedural timetable is fixed, the
time limit for the final award will initially default to six months from the date of approval or last
signature of the Terms of Reference. The Court can extend the time limit for the final award.

Awards and Award Scrutiny

Scrutiny is a distinctive feature of ICC Arbitration. No arbitral award is issued without the Court’s
approval.

Submission of the draft Award and scrutiny

After the closing of the proceedings, the Arbitral Tribunal will draw up a draft “Award” that is submitted
to the Court for scrutiny. The Court will scrutinise all awards. In doing so, it may lay down modifications
as to form and, without affecting the Arbitral Tribunal’s liberty of decision, draw its attention to points
of substance. In scrutinising draft awards, the Court considers, to the extent practicable, the
requirements of mandatory law at the place of arbitration.

Notification of the Award

Once approved by the Court, the “Award” is signed by the arbitrators. It is deemed to be made at the
place of the arbitration on the date indicated. It is then notified to the parties by the Secretariat.6

6
(n.d.). Procedure - ICC - International Chamber of Commerce. Retrieved from https://iccwbo.org/dispute-resolution-
services/arbitration/procedure/

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