ADR Expanded Outline and Class Notes

transcript

LAW 160 A (PROBLEMS IN REMEDIAL LAW / ALTERNATIVE DISPUTE RESOLUTION)

Prof. Arthur Autea | 1st Sem 2011-2012

Expanded Outl ine and Class Notes by Eva Marie G. Gutierrez

GRADING SYSTEM

60% - Attendance, Class Participation, Quizzes

40% - Final Exams

I. Introduction

o Course focus is on ARBITRATION, the only legally binding

form of ADR

o Look at ADR as an alternative to conventional litigation

procedure but use analogy to understand the process

better

o It is alternative because it can be practiced even without

a lawyer

Conventional Litigation

Arbitration

Nature Public Procedure Private Procedure “Private Judging”, private resolution of disputes

Who presides A judge The arbitrator

Participation in choosing presiding officer

You cannot choose your judge; assignment by raffle;

Parties have participation in choosing arbitrator; always by mutual agreement whether it be sole or panel arbitration

Composition of tribunal

Only one judge in RTC/MTC to preside

Usually, either a sole arbitrator or panel of 3

over the case (chairman and 2 co-arbitrators)

Who bears costs Salary of judges paid by the state

Compensation of arbitrators shouldered by the parties

Governing law and rules in settling the dispute

Applicable Philippine law is followed unless there is a choice of law clause; Rules of Court followed

Parties can choose applicable law and rules, including procedure, to govern the resolution of the dispute

Venue Rules on venue followed in adjudication of claim

Venue chosen by parties

Speed of proceedings

Procedure drags so long

Scheduled in quick succession

Parties Plaintiff and Respondent

Claimant and Respondent

Kinds of Arbitration

Ad hoc Institutional

Parties will take care of the logistics

Institutions acts just like Clerks of Court – receives request for arbitration, sends out notices, records proceedings, provides hearing rooms and other logistics

Arbitration deemed commenced upon service of demand for arbitration (Sec. 5(a), RA 876)

Governing law and rules: Domestic – RA 876 and

In default of agreement of the parties, institutions have their own rules that the

ADR Notes | Page 2 of 17

Special ADR Rules (RA 9285, Sec. 32 refers back to RA 876) International – UNCITRAL 1985 Model Law (as expressly adopted by Sec. 19, RA 9285) and UNCITRAL Rules of Arbitration

parties can adopt e.g. ICC Rules

Example: ICC/ICA (most prominent), AAA, LCIA, HIAC, SIAC, JCCA, KCAB, PDCI, CIA, KLRCA, IAB, ACICIA

Domestic International

“Domestic arbitration” shall mean an arbitration that is not international as defined in Article 1(3) of the Model Law (Sec. 32, RA 9285)

(3) An arbitration is international if: (a) the parties to an arbitration agreement have, at the time of the conclusion of that agreement, their places of business in different States; or (b) one of the following places is situated outside the State in which the parties have their places of business: (i) the place of arbitration if determined in, or pursuant to, the arbitration agreement; (ii) 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; or (c) the parties have expressly agreed that the subject-matter of the arbitration agreement relates to more than one country. (4) For the purposes of paragraph (3) of this article: (a) if a party has more than one place of business, the place of business is that which has the closest relationship to the arbitration agreement; (b) if a party does not have a place of business, reference is to be made to his habitual residence. [UNCITRAL Model Law Article 1 (3)]

Legislative History of Arbitration in the Philippines

Major Developments

(1) 1953 – RA 876 enacted by a domestic act, covers domestic

arbitration; meanwhile, Southeast Asian region’s use of

arbitration as a mode of dispute resolution continues to be

more prevalent

(2) 1985 – EO 1008 signed into law by Pres. Marcos which covers

construction arbitration and created a body – the CIAC:

Construction Industry Arbitration Authority; jurisprudence on

arbitration, especially construction arbitration, enriched from

1985; although in practice, arbitration clauses are not

regularly invoked even if there is arbitrable dispute

(3) 2004 – RA 9285 (ADR Act) deals with both domestic and

international discussion; not as extensive as RA 876; no

chapter discussing international arbitration, instead it

referred to an existing model of international arbitration –

the 1985 UNCITRAL Model Law

(4) 2009 – Special ADR Rules issued by Supreme Court, supplied a

lot of missing elements in RA 876 and RA 9285

Note: even before 1953, arbitration agreements were also

recognized by jurisprudence; a lot of jurisprudential

developments and language on arbitration landed in the statutes

and Special ADR Rules

Other Developments:

1958 – New York Convention on the Recognition and

Enforcement of Foreign Arbitral Awards, Philippines a

signatory

1978 – UNCITRAL Arbitration Rules

1996 – China Chang Jiang Energy Corp (Philippines) vs Rosal

Infrastructure Builders, landmark case in construction

arbitration is decided although unreported: pronounced that

if there is an construction contract with arbitration clause

then jurisdiction is with CIAC

o Construction industry

o FIDIC

Definition of Arbitration Agreement

RA 876, Sec. 2

Arbitration Agreement Submission Agreement

As to time agreed upon by the parties (relative to the occurrence of the dispute)

Agreed by the parties even BEFORE the occurrence of dispute;

Agreed upon by the parties AFTER the occurrence of a dispute;

As defined in Sec. 2, RA 876

parties to a contract agree in such a contract [container contract] agree to settle by arbitration a controversy thereafter arising between them [usually, in an arbitration clause]

two or more persons submit to the arbitration of one or more arbitrators any controversy existing between them at the time of the submission

When it may be invoked

A party may invoke this at any time before pre-trial stage, after which both parties must invoke it

May be entered into at any time, even after pre-trial stage

RA 9285, Sec. 3 (d)

"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.

UNICTRAL Model Law, Article 7(1)

“Arbitration Agreement” is an agreement by the parties to submit to

arbitration all or certain disputes which have arisen or which may arise

between them in respect of a defined legal relationship, whether

contractual or not. An arbitration agreement may be in the form or an

arbitration clause in a contract or in the form of a separate agreement.

Civil Code, Article 1159

Obligations arising from contracts have the force of law between the

contracting parties and should be complied with in good faith.

Frabelle Fishing Corporation v. Philippine American Life Insurance

Company (2007)

o HLURB has no jurisdiction over reformation of contracts

o Arbitration is the “wave of the future” citing BF Homes v CA

o Re issue WON there should be prior referral to arbitration, SC

made no definite ruling.

o Case does not show if any of the parties prayed for arbitration;

however, there was an issue WON the dispute is arbitrable and

the Court resolved it in the affirmative

o Sir thinks Court fell short of ordering (in the dispositive) referral

to arbitration

Exclusion from coverage of commercial arbitration

RA 876, Sec. 3 – controversies and case subject to the jurisdiction of NLRC

i.e. labor disputes arising from employer-employee relationship

RA 9285, Sec. 6 –

(a) labor disputes covered by Presidential Decree No. 442, otherwise known

as the Labor Code of the Philippines, as amended and its Implementing

Rules and Regulations;

(b) the civil status of persons;

(c) the validity of a marriage;

(d) any ground for legal separation;

(e) the jurisdiction of courts;

(f) future legitime;

(g) criminal liability; and

(h) those which by law cannot be compromised.

Formal requirements of arbitration agreement

1. in writing

2. subscribed

RA 876, Sec. 4

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.

UNCITRAL Model Law, Article 7(2)

The arbitration agreement shall be in writing. An agreement is in writing if

[1] it is contained in a document signed by the parties or

[2] in an exchange of letters, telex, telegrams or other means of

telecommunication which provide a record of the agreement, or

[3] in an exchange of statements of claim and defence in which the

existence of an agreement is alleged by one party and not denied by

another.

The reference in a contract to a document containing an arbitration clause

constitutes an arbitration agreement provided that the contract is in

writing and the reference is such as to make that clause part of the

contract.-

o Statement of Claim – first substantive pleading of the claimant

o Statement of Defence – first substantive pleading of the

respondent

Q: Is it conceivable to have an arbitration agreement not evidenced by

physical document?

A: Yes, third mode under Model Law Art. 7 (2)

BF Corporation v. Court of Appeals

o Articles of Agreement adopted/referred to another document

containing the arbitration agreement: valid

o The famous pronouncement re arbitration: Arbitration is now

regarded as the “wave of the future” in international civil and

commercial disputes.

Associated Bank v. Court of Appeals

o Participation in the Philippine Clearing House Rules (PCHR)

amounts to a written and subscribed consent to arbitration

Bloomfield Academy v. Court of Appeals

o A party was bound by the law to some kind of arbitration. Is the

provision an arbitration agreement?

Ormoc Sugarcane Planters Association, Inc v. Court of Appeals

o Association filed a case for arbitration without impleading the

individual planters who are the real parties in interest , they are

the parties (to the contract with sugar central owners) containing

the arbitration clause

o At best, the Association is an agent, however in that case, it

should be properly authorized to bring suit on behalf of the

planters

o The Associations complaint was denominated “Arbitration and

Recovery of Shares, Attorney’s Fees and Damages” – this is not a

proper complaint; if the issue is arbitrable, everything should be

referred to arbitration. Jurisdiction of the court is limited to the

resolution WON dispute should be referred to arbitration,

otherwise, it would be encroaching on the jurisdiction of the

arbitrator(s).

Ma. Luisa Park Association v. Almendras

o Court noted the existence of an arbitration agreement but did

not order the parties to arbitrate; if none of the parties invoke it,

the court cannot compel parties to go to arbitration; implication:

rights under an arbitration agreement are waivable

Q: What is a “pathological arbitration clause”?

A: a vague or defective arbitration clause; qualified; not a “any and all

disputes…” stipulation. The issue reluctant to submit to arbitration can

raise the issue that the dispute is not covered by the arbitration

agreement

e.g: Ormoc, McDOnough? Oil and Natural Gas Commission v. CA, LM

Power Eng’g Corporation v. Capitol Industrial Construction Groups, Inc.

Party Autonomy

o Freedom of the parties to determine the rules / law governing the

mode of resolving their dispute

o Standard of “least intervention” implies that the jurisdiction of

the court is only confined to the relief sought by the parties

- In a Petition to Enforce Arbitration Agreement, RTC can only

refer the parties to arbitration after finding the existence of an

arbitration agreement and the default of the other party, it

cannot appoint the arbitrators

- In a Petition/Motion to Vacate Arbitral Award, it can only vacate

the award if so warranted but it cannot proceed to resolve the

merits of the case

RA 9285, Sec. 2

…it is hereby declared the policy of the State to actively promote party

autonomy in the resolution of disputes or the freedom of the party to make

their own arrangements to resolve their disputes xxx

SADR Rule 2. 1

It is the policy of the State to actively promote the use of various modes of

ADR and to respect party autonomy or the freedom of the parties to make

their own arrangements in the resolution of disputes with the greatest

cooperation of and the least intervention from the courts xxx

Principle of competence-competence and Doctrine of Separability

UNCITRAL Model Law, Article 16(1)

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 parts of

the contract. The decision by the arbitral tribunal that the contract is null

and void shall not entail ipso jure the invalidity of the arbitration clause.

SADR, Rule 2.2 (B)

The Special ADR Rules recognize the principle of competence-competence,

which means that the arbitral tribunal may initially rule on its own

jurisdiction, including any objections with respect to the existence or

validity of the arbitration agreement or any condition precedent to the

filing of a request for arbitration.

The Special ADR Rules recognize the principle of separability of the

arbitration clause, which means that said clause shall be treated as an

agreement independent of the other terms of the contract of which it forms

part. A decision that the contract is null and void shall not entail ipso jure

the invalidity of the arbitration clause.

Gonzales v. Climax Mining Ltd.

o Ratio:

o If allegation is regarding the validity container contract and/or

validity of arbitration clause, they may be jointly resolved by the

tribunal

o Validity of arbitration agreement determines the jurisdiction of

the arbitration tribunal but principle of competence-competence

allows the arbitral tribunal to initially rule on its own jurisdiction

Korea Technologies Co., Ltd. v. Lerma

o On interim measures: When KOGIES filed injunction before RTC

Muntinlupa, no arbitral tribunal was constituted but 2 days later,

KOGIES commenced arbitration with KCAB

o Qualified ruling in UP v. Delos Angeles on unilateral rescission of

reciprocal obligations, thus: “Where an arbitration clause in a

contract is availing, neither if the parties can unilaterally treat the

contract as rescinded since whatever infractions or breaches by a

party or differences arising from the contract must be brought

first and resolved by arbitration, and not through an extrajudicial

rescission or judicial action.

• Article 2044 of the Civil Code sanctions the validity and mutuality

of agreed arbitration clause or the finality and binding effect of an

arbitral award.

• The arbitration clause which stipulates that the arbitration must

be done in Seoul, Korea in accordance with the Commercial

Arbitration Rules of KCAB, and that the award is final and binding,

is not against public policy. Consistent with the policy of

encouraging ADR methods, courts should liberally construe

arbitration clauses.

• RA 9285 incorporated the UNCITRAL Model Law to which we are

a signatory. Although passed only in 2004, it is a procedural law

which has a retroactive effect.

• Under Sec. 24, the RTC does not have jurisdiction over disputes

that are properly the subject of arbitration pursuant to an

arbitration clause, and mandates the referral to arbitration.

• Foreign arbitral awards when confirmed by the RTC are deemed

not as judgment of a foreign court but as foreign arbitral award,

and when confirmed, are enforced as final and executor decisions

of our courts of law.

• The concept of a final and binding award is similar to judgments

or awards given by quasi-judicial bodies whose final judgments

are stipulated to be final and binding but not immediately

executory in a sense that it can still be judicially reviewed.

PEZA v. Edision

Q: Was this a proper case for Motion for Judgment on the Pleadings?

International commercial arbitration

RA 9285, Secs. 19 – 21

UNCITRAL Model Law, Article 1 (supra)

Commencement of Arbitration

Under RA 876, Sec. 5, arbitration proceedings (ad hoc) is commenced by

service of a DEMAND FOR ARBITRATION.

Contents:

1. Amount involved, if any

2. Relief sought

3. Nature of controversy

4. Appointment of arbitrator (nominee)

Attach: true copy of the contract (arbitration agreement)

Note: the demand will also stop the running of the prescriptive period

If demand is ignored – Petition court for enforcement (See next section)

UNCITRAL Model Law, Article 21

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.

o For institutional arbitration – arbitration is commenced upon

notice of the institution to the respondent of the claimant’s

request for arbitration with the institution

Enforcement of Arbitration/Submission Agreement

o Via a “Petition for Enforcement of Arbitration Agreement” under

RA 876, Sec. 6

o Grounds: Failure, neglect or refusal to comply with the arbitration

agreement

o How to dispose of a Petition to Enforce:

(1) Existence of Arbitration Agreement

(a) Not in issue – proceed to No. 2

(b) In issue

(i) no arbitration agreement – dismiss petition, nothing to

enforce

(ii) there is arbitration agreement – go to No. 2

(2) Existence of default

(a) No default – dismiss e.g. no prior service of demand for

arbitration

(b) There is default – Grant petition, refer to arbitration

o Note: “default” refers to performance under the arbitration

agreement or as used in Section 6, the other party’s “failure,

neglect or refusal”

o Nature of proceedings: under the SADR, summary in nature, ~

civil action for specific performance

o The kind of jurisdiction of the court who takes cognizance of

Section 6 petition: SPECIAL and LIMITED i.e. “the court cannot

stray to matters outside the area of its declared authority or

beyond what has been expressly invested by the law” (La Naval

Drug v. CA).

o Duty of the court in a Section 6 Petition:

“The duty of the court in this case is not to resolve the merits of

the parties’ claims but only to determine if they should proceed

to arbitration or not (Mindanao Portland Cement Corporation v.

McDonough Construction Company of Florida).

Section 6, RA 876 Section 7, RA 876 (in rel. to Sec. 24, RA 9285 – referral to arbitration)

“Petition for Enforcement of Arbitration Agreement”

“Motion for Stay of Action”

Dispute not yet with the court Dispute already with the court Note: provided the applicant for the stay is not in default in proceedings with such arbitration.

Q: Why is a “Motion for Stay of Action” more preferable than a “Motion

to Dismiss”?

A: Dismissal will result to loss of jurisdiction by the court (e.g APT v. CA,

1998). But remember that there will be instances when you have to go

back to court such as for interim reliefs, assistance in taking evidence, to

renew challenge of arbitrator, and most importantly for confirmation of

the arbitral.

For practical reasons: If you have to start a new case, you have to pay

new docket fees, have the case re-raffled, etc.

o See Section 7 discussion below (Referral to Arbitration)

Mindanao Portland Cement Corporation v. McDonough Construction

Company of Florida

o Respondent’s arguments touching upon the merits of the dispute

is improperly raised herein. They should be addressed to the

arbitrators. This proceeding is merely a summary remedy to

enforce the agreement to arbitrate. The duty of the court in this

case is not to resolve the merits of the parties’ claims but only to

determine if they should proceed to arbitration or not.

La Naval Drug Corp. v. Court of Appeals

o Under Section 6 of RA 876, a court, acting within the limits of its

special jurisdiction, may in this case solely determine the issue of

whether the litigants should proceed or not to arbitration.

o When a court is called upon to exercise limited and special

jurisdiction, that court cannot stray outside the area of its

declared authority or beyond what has been expressly invested

by law.

Judicial Relief Before and After Commencement of Arbitration

Proceedings

See: SADR Rule 3

Confidentiality of Arbitration Proceedings:

o Confidentiality refers to three things: records, evidence and

arbitral award

o Exceptions:

(1) Waived by the consent of the parties

(2) For a limited purpose of disclosing to the court of relevant

documents e.g

(a) enforcement/confirmation of award

(b) renewing challenge of appointment of arbitrator

(c) vacating/setting aside award

(d) interim relief

II. Arbitrators

APPLICABLE PROVISIONS:

SADR Rule 6 to Rule 8

RA 876 Sections 8, 10, 11, 13

UNCITRAL Model Law, Articles 10 – 14

Civil Code, Article 2045. Any clause giving one of the parties power to

choose more arbitrators than the other is void and of no effect.

CASES:

National Steel Corporation v. RTC of Lanao Del Norte, Branch 2, Iligan

o Arbitrators act in a “quasi-judicial capacity”. Implications:

1. quantum of evidence required is substantial evidence

2. arbitral tribunal same level as RTC

Oil and Natural Gas Commission v. Court of Appeals

o An example of a pathological arbitration clause

o This is a foreign arbitral award hence Laws/Rules of India

applicable when award was brought for confirmation on its

courts

Magellan Capital Management Corporation v. Zosa

o domestic arbitral award

o If some of the

o Arbitration clause is partially void as to composition of the

arbitral tribunal for violation of Article 2045 Civil Code

o If some (2) of the parties represent the same interest, they

should be entitled to only 1 arbitrator

o Q: Was the court right in prescribing the manner by which

tribunal should be constituted?

Appointment of Arbitrators

(A) Domestic – ad hoc (SADR Rule 6)

(1) Follow provisions of the arbitration

(2) If unable to implement (1), National President of IBP or his duly

authorized representative appoints w/in 30 days from receipt of

request for appointment

(3) Failing (1) and (2), any party may request the court to act as

Appointing Authority. See RA 876, Sec. 8 and SADR Rule 6.1 for

instances when court may appoint arbitrator

(B) Institutional: usually rules regarding appointment of arbitrators are

provided by the institution. Absent stipulation of the parties, the

institution acts as the Appointing Authority e.g. ICA under ICC Rules

Challenge (of the Appointment) of Arbitrators

See: SADR Rule 7

Grounds (Rule 7.2):

(1)As provided in RA 876 (Sec. 10 – qualifications/disqualifications)

and the Model Law (Article 12 – doubts as to impartiality or

independence)

(2) As stipulated by the parties

(3) Nationality or professional qualification NOT a ground, unless OW

stipulated

Different from Termination of Mandate of Arbitrator (See SADR Rule 8)

o As to ground: arbitrator becomes de jure or de facto unable to

perform his function or for other reasons fails to act without

undue delay (Rule 8.2)

Procedure of Challenge (SADR Rule 7.2)

o Confront the challenged arbitrator (see procedure, Artice 13 (2)

Model Law)

o Request Appointing Authority to Rule on the Challenge

o If challenge is unsuccessful or Appointing Authority fails or

refuses to act on it, aggrieved party may RENEW the challenge in

court (RTC)

o Decision shall be immediately executory and not subject to MR,

certiorari or appeal (Rule 7.8)

Effect of Challenge

o Article 13, Model Law as adopted by Sec. 33, RA 9285, amending

Sec. 11, RA 876

o Arbitral tribunal, including the challenged arbitrator, may

CONTINUE the arbitral proceedings and make an award

III. Arbitration Proceedings

PROVISIONS:

RA 9285 Sections 22-23, 26-27, 30-31

UNCITRAL Model Law Articles 16, 18-20, 23-27

RA 876 Sections 12-18, 22

SADR Rules 9-10

NOTES:

Arbitral Tribunal

Assistance in Taking Evidence

Confidentiality

In practice, here’s what happens:

1) Preliminary conference (similar to pre-trial proceedings)

2) Presentation of evidence

a) Arbitral tribunal require simultaneous submission of

(usually w/in 30 days upon approval of the parties):

i. “bundle of documents/exhibits” [similar to

formal offer of documents]

ii. Together with “Witnesses’ Statements” [for

purpose similar to judicial affidavits]

b) Dates to be followed set and issued

c) Cross examination of claimant’s witnesses

d) Cross examination of respondent’s witnesses

e) Final memoria/memorandum simultaneously submitted

IV. Referral to Arbitration

PROVISIONS:

RA 876 Section 7

RA 9285 Sections 24-25

UNCITRAL Model Law Article 8

SADR Rule 4

NOTES (referral to arbitration under RA 876 Section 7 in relation to RA

9285 Section 24):

GR: By one party if not later than the pre-trial

Exc: By consent of both parties after the pre-trial stage via a Joint

Motion or without objection from another upon motion of one of the

parties

Q: Is it ministerial the court to refer dispute to arbitration and to grant

motion to stay?

A: No. Court has to exercise discretion in determining:

1) WON issue is a proper subject of arbitration i.e. WON it is an

arbitrable issue

2) WON arbitration agreement is

a) Null and void (e.g. under RA 876 Section 3, RA 9285

Section 6)

b) Inoperative

c) Incapable of being performed

o Although Section 7 only refers to domestic arbitration, it is ALSO

applicable to international arbitration by virtue of RA 9285:

a) Article 24 is under the chapter on International

Commercial Arbitration

b) Article 8 Model Law as adopted by Article 19

(but Model Law uses “not later than submission of first

statement on substance” as reckoning point)

CASES:

Vega v. San Carlos Milling (1924)

o Malcolm’s dissent:

“In the Philippines fortunately, the attitude of the courts toward

arbitration agreements is slowly crystallizing into definite

workable form… The rule now is that unless the agreement is

such as absolutely to close the doors of the courts against the

parties, which would be void, the courts will look with favor upon

such amicable arrangements and will only with great reluctance

interfere to anticipate or nullify the action of the arbitrator.”

LM Power Eng’g Corporation v. Capitol Industrial Construction Groups,

Inc. (2003)

o Even if RTC denies motion/petition to refer to arbitration, and

proceeded to render judgment, it does not necessarily render

moot and academic the referral to arbitration.

o In this case RTC ordered Capitol to pay LM but CA and SC says

ordered the dispute to be referred to arbitration.

Puromines, Inc. v. Court of Appeals (1993)

o The rules now is that unless the agreement is such as absolutely

to close the doors of the courts against the parties, which

agreement would be void, the courts will look with favor upon

such amicable arrangements and will only interfere with great

reluctance to anticipate or nullify the action of the arbitrator

(citing Vega v San Carlos Milling)

o Dispute on liability to damages arising from carriage of goods

o Parties to a sales contract and/or bill of lading bound by the

arbitration clause thereat.

o Reiterated Mindanao v McDonough on duty of the courts under

Sec. 6

National Power Corporation v. Court of Appeals and PECORP (1996)

o Arbitration clause has no qualification as to what are arbitrable

issues

o Court of appeals nonetheless proceeded to resolve Issues Nos. 3

and 4 – not proper! Once dispute it properly referable to

arbitration, it the arbitral tribunal which must resolve all the

issues.

Sea-Land Service, Inc. v. Court of Appeals

o Court held that the third party complaint (based on

reimbursement) should be dismissed since reimbursement is to

be settled by arbitration pursuant to the agreement by the

parties

Fiesta World Mall Corp. v. Linberg Philippines (2006)

o J. Panganiban: “By enabling the parties to resolve their disputes

amicably, alternative dispute resolution methods or ADRs provide

solutions that are less time-consuming, less confrontational, and

more productive of goodwill and lasting relationships.”

o A good illustration of court’s exercise of discretion before

referring parties to arbitration in construing an arbitration clause

which refers to a venue stipulation on litigation

o A qualified arbitration clause but not pathological.

California and Hawaiian Sugar Company v. Pioneer Insurance and Surety

Corporation (2000)

o It would seem that a party may be bound to arbitration

agreement through subrogation but there is no categorical ruling

in this case.

o “There is nothing in Pan Malayan Insurance v CA that prohibited

the applicability of the arbitration clause to the subrogee.”

o Reverse situation in LM Power case wherein the question is WON

a party may be compelled by the other to arbitrate despite the

pendency of “Motion to Stay Civil Action”. Interested party may

commence arbitration proceeding, to complete the arbitral

tribunal make use of Appointing Authority.

Mindanao Portland Cement Corporation v. McDonough Construction

Company of Florida (1967) - supra

Rule on multi-party disputes

Toyota Motor Philippines Corporation v. Court of Appeals (1992)

o The presence of third parties in the dispute does not render the

arbitration agreement dysfunctional.

o Contracts are respected as law between the parties.

o The judge having been apprised of the presence of arbitration

agreement, he should have at least suspended the case and

directed the parties to settle their dispute by arbitration

o Silent as to third persons not bound by the arbitration

agreement. Note: Under RA 9285 Section 25, litigation may

continue as to third persons or under SADR Rule 4.7 they may

join the arbitration by consent of all parties

Heirs of Augusto L. Salas, Jr. v. Laperal Realty Corporation (1999)

o Only parties to an agreement, their assigns or heirs have the right

to arbitrate or could be compelled to arbitrate.

o Buyers not such assigns or heirs.

o The splitting of the proceedings to arbitration to some of the

parties on one hand and trial for the others on the other hand, or

suspension of the trial pending arbitration between some of the

parties, should not be allowed as it would, in effect result in

multiplicity of suits, duplicitous procedure and unnecessary delay.

Del Monte Corporation-USA v. Court of Appeals (2001)

o Declared that Salas ruling supersedes Toyota thus making Salas

stare decisis

o A bad ruling! Persons who do not want to go arbitration can

easily thwart the arbitration agreement by merely impleading

third persons, even “innocent by-standers” who are not actually

real parties in interest.

o Del Monte ruling superseded by statute (RA 9285 Section 25) and

expounded by SADR Rules Rule 4.7

SEC. 25. xxx Where action is commenced by or against multiple parties,

one or more of whom are parties who are bound by the arbitration

agreement although the civil action may continue as to those who

are not bound by such arbitration agreement.

Rule 4.7. Multiple actions and parties. — The court shall not decline to refer some or all of the parties to arbitration for any of the following reasons:

a. Not all of the disputes subject of the civil action may be referred to arbitration;

b. Not all of the parties to the civil action are bound by the arbitration agreement and referral to arbitration would result in multiplicity of suits;

c. The issues raised in the civil action could be speedily and efficiently resolved in its entirety by the court rather than in arbitration;

d. Referral to arbitration does not appear to be the most prudent action; or

e. The stay of the action would prejudice the rights of the parties to the civil action who are not bound by the arbitration agreement.

The court may, however, issue an order directing the inclusion in arbitration of those parties who are not bound by the arbitration agreement but who agree to such inclusion provided those originally bound by it do not object to their inclusion.

V. Interim Measure of Protection

PROVISIONS:

SADR Rule 5

RA 876 Sec. 14

RA 9285 Sections 33, 28-29

UNCITRAL Model Law Articles 9, 17

NOTES:

3 periods when a petition for interim measures for protection

may be made (Rule 5.2)

(1) before arbitration is commenced

(2) after arbitration is commenced but before the constitution of

the arbitral tribunal

(3) after the constitution of the tribunal and at any time during

the arbitral proceedings but

GR: Arbitral Tribunal to grant interim measures

Exc: Courts may grant interim measures when:

(a) Arbitral Tribunal has no power to act

(b) It cannot act effectively

VI. The Arbitral Award

Domestic Arbitral Award

Civil Code, Art. 2044. Any stipulation that the arbitrators' award or

decision shall be final, is valid, without prejudice to Articles 2038,

2039, and 2040.

Art. 2038. A compromise in which there is mistake, fraud,

violence, intimidation, undue influence, or falsity of

documents, is subject to the provisions of Article 1330 of this

However, one of parties cannot set up a mistake of fact as

against the other if the latter, by virtue of the compromise, has

withdrawn from a litigation already commenced. (1817a)

Art. 2039. When the parties compromise generally on all

differences which they might have with each other, the

discovery of documents referring to one or more but not to all

of the questions settled shall not itself be a cause for

annulment or rescission of the compromise, unless said

documents have been concealed by one of the parties.

But the compromise may be annulled or rescinded if it refers

only to one thing to which one of the parties has no right, as

shown by the newly-discovered documents. (n)

Art. 2040. If after a litigation has been decided by a final judgment,

a compromise should be agreed upon, either or both parties

being unaware of the existence of the final judgment, the

compromise may be rescinded.

Ignorance of a judgment which may be revoked or set aside is

not a valid ground for attacking a compromise.

RA 876 Sections 19, 20, 23

Confirming, correcting/modifying, vacating domestic arbitral award

SADR Rule 11

RA 9285 Section 40, 41

RA 876 Sections 2, 24-28

Asset Privatization Trust v. Court of Appeals

o The arbitrators cannot resolve issues beyond the scope of the

submission agreement. An award of damages to one who is not a

party before the Arbitration Committee is a complete nullity.

o A party’s prayer for setting aside an arbitral award is not

inconsistent with its avowal of the court’s jurisidiction.

o RTC made a fatal mistake in dismissing the case instead of merely

suspending it to await the outcome of arbitration proceedings.

Romago, Inc. v. Siemens Building Technologies, Inc. (2009)

o Supply contract, not construction contract hence CIAC has no

jurisdiction

o Cited FBDC v Domingo in defining construction.

Chung Fu Industries (Philippines), Inc. v. Court of Appeals (1992)

o Cited Vega v San Carlos Milling; Art. 2044 CC applied

o The finality of the arbitrators award is not absolute and

without exceptions.

o Voluntary arbitrators by the nature of their functions act in a

quasi-judicial capacity. Their decisions should be beyond the

scope of the power of judicial review of the Supreme Court.

o Rule 65 Certiorari as a remedy

Adamson v. Court of Appeals (1994)

o That the party was disadvantaged by the decision of the

Arbitration Committee does not prove evident partiality.

o Independent evidence (other than the award) must be

presented and proved to show partiality,

National Steel Corporation v. RTC of Lanao Del Norte, Br. 2, Iligan City

(1999), supra

Equitable PCI Banking Corporation v. RCBC Capital Corporation (2008)

o Judicial review of an arbitration is more limited than judicial

review of a trial.

o Courts will not undertake to substitute their judgment for

that of the arbitrator, since any other rule will make an award

the commencement, not end of, litigation.

o To justify vacation of an arbitral award on account of

“manifest disregard of the law”, the arbiter’s findings must

clearly and unequivocally violate an established legal

precedent (citing APT v CA)

o Why a “Partial Award”? Arbitral Tribunal used the bifurcated

approach, a method usually used in international commercial

arbitration:

1. Liability Portion (Who is liable?)

2. Quantum (What is the quantity of liability?)

Recognition and Enforcement of International Commercial Arbitration

UNCITRAL Model Law Articles 28-33, 35

SADR Rule 12

o Petition to Set Aside – the exclusive remedy against an

international arbitral award; within 3 months!

(Setting Aside and Refusing/Rejecting) Recognition or Enforcement of

Foreign arbitral award

UNCITRAL Model Articles 34, 36

New York Convention

SADR Rule 13

Foreign arbitral award – one made in a country other than the Philippines

[Rule 1.11(d)]

National Union Fire Insurance Company of Pittsburg v. Stolt-Nielsen

Philippines, Inc. (1990)

o Obligations of Philippines as contracting state to the New York

Convention:

1. recognize arbitration agreements; refer the parties to

arbitration unless it finds that said agreement is void, inoperative

or incapable of being performed

2. recognize and enforce arbitral awards

3. not to impose more onerous conditions that those impose to

domestic arbitration

VII. Motion for Reconsideration, Appeal, Certiorari

SADR Rule 19

RA 876 Section 29

RA 9285 Section 46

1997 Rule of Civil Proedure, Rule 43 Section 1

VIII. Pleading, Practice and Procedure under

Special ADR Rules

SADR Rule 1

Scope: 12 proceedings – 9 summary, 3 not summary in nature

Summary proceeding under this Rule is not the same as ordinary

summary proceedings:

1. service to respondent and filing with court with proof of service to the

respondent since no summons will be served

2. notice from court to file comment or opposition within 15 days from

receipt plus hearing, if necessary which will be within 5 days conducted in

1 day only

3. resolution by court within 30 days

(approx. 58 days!)

o Verification and CNFS general requirements but verification need

not be signed by the party: lawyer may sign

o Motions: written submissions up to Comment only

IX. Construction Arbitration

Executive Order No. 1008, s. 1985

Sec. 4. Jurisdiction. The CIAC shall have original and exclusive

jurisdiction over disputes arising from, or connected with, contracts

entered into by parties involved in construction in the Philippines,

whether the dispute arises before or after the completion of the

contract, or after the abandonment or breach thereof. These disputes

may involve government or private contracts. For the Board to acquire

jurisdiction, the parties to a dispute must agree to submit the same to

voluntary arbitration.xxx

SADR Rules 16, 17

Fort Bonifacio Development Corporation v. Sorongon (2009)

o Construction is defined as referring to all on-site works on

buildings or altering structures, from land clearance to

completion, including excavation, erection, and assembly and

installation of components and equipment.

o Dispute regarding an assigned retention money arising from a

construction contract not within the jurisdiction of CIAC.

China Chang Jiang Energy Corporation (Philippines) v. Rosal

Infrastructure Builders (1996)

o Cited Hi-Precision Steel v Lim Kim Steel Builders on exclusive

and original jurisdiction of CIAC whenever

1. there is a construction agreement

2. with arbitration clause/submission to voluntary arbitration

o Implication: CIAC has jurisdiction despite stipulation of

another arbitral body

Prudential Guarantee and Asssurance Inc. v. Anscor Land, Inc. (2010)

o A dispute must meet 2 requirements in order to fall under the

jurisdiction of CIAC:

1. the dispute must be somehow connected to a construction

contract

2. the parties must have agreed to submit the dispute to

arbitration proceedings

o Implication: it is conceivable for a non-party to the

construction agreement to submit to the jurisdiction of CIAC

o In this case, the bonding company which issued a surety bond

and performance bond in favor of the employer (project-

owner) is compelled to submit to the jurisdiction of CIAC

under Section 4 EO 1008: “xxxdisputes arising from or

connected with, construction contracts…”

Hi-Precision Steel Center, Inc. v. Lim Kim Steel Builders, Inc. (1993)

o Under Section 19 EO 1008 questions of fact cannot be raised

in a proceeding before the Supreme Court

o Factual issues cannot be craftily disguised as legal issues to

subvert this rule

o Standard: the Supreme Court will review issues of fact

previously presented before the Arbitral Tribunal only where

there is a very clear showing that, in reaching its factual

conclusions, the Tribunal committed an error so egregious

and hurtful to one party as to constitute grave abuse of

discretion.

Arbitration Clause in a Construction Agreement

Arbitration Clause in a Non-Construction Agreement

Court can motu proprio note the existence of an arbitration agreement

Court CANNOT motu proprio note the existence of an arbitration agreement, party/parties must invoke it

Court to dismiss action and refer to CIAC thus losing jurisdiction

Court merely stay civil action, court does not lose jurisdiction

X. Mediation

RA 9285, Section 3 (q)

"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.

Rule 15

o Mediation, as opposed to arbitration, will not result to

binding resolution unless:

1. a successful mediated settlement agreement is converted

into a arbitral award by consent of the parties, and

2. the mediator is considered as an arbitrator

XI. Other Forms of ADR ; Nature of Liability

RA 9285 Section 3 (definitions)

(l) "Court-Annexed Mediation" means any mediation process conducted

under the auspices of the court, after such court has acquired

jurisdiction of the dispute;

(m) "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;

(n) "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;

(t) "Mediation-Arbitration" or Med-Arb is a step dispute resolution process involving both mediation and arbitration;

(u) "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;

RA 9285, Section 5

RA 876, Section 20

SADR Rule 18

XII. Loans Secured by Collateral

SADR Rule A

ADR Expanded Outline and Class Notes

Documents