ALTERNATIVE DISPUTE RESOLUTION Course Outline - SY 2015-2016

I. Introduction -

What is Conflict? a state of opposition, incompatibility, or disagreement between persons or ideas or interests which produce enmity or hostility that must be resolved. a normal and inevitable element in any working relationship. Conflict happens due to differences in opinions and can arise whenever individuals have conflicting ideas, principles, values or desires.

And How to Manage Conflict.

"Alternative Dispute Resolution System" means any process or procedure used to resolve a dispute or controversy, other than by adjudication of a presiding judge of a court or an officer of a government agency, as defined in this Act, in which a neutral third party participates to assist in the resolution of issues, which includes arbitration, mediation, conciliation, early neutral evaluation, mini-trial, or any combination thereof.

II. Common Types of Dispute Settlement

- Negotiation any form of direct or indirect communication whereby parties who have opposing interests discuss the form of any joint action which they might take to manage and ultimately resolve the dispute between them.

- Inquiry and fact finding Fact-finding refers to a process by which the facts relevant to a dispute are determined. It is a process whereby a neutral third party investigates a matter to determine the disputed fact. This process is usually used in Alternate Dispute Resolution procedures involving technical issues or cases in which significant factual issues are part of a larger dispute. With regard to the binding effect of fact-finding results, the parties can negotiate on making the fact-finding results binding or nonbinding.

- 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.

- Good offices In international law, a means of peacefully resolving disputes between states. By good offices is meant the assistance of a state or international body in establishing contact or beginning direct negotiations between the disputing parties, with the aim of the peaceful settlement of the conflict. Good offices are in the nature of advice that is not binding on the disputing parties. A state rendering its good offices essentially takes no part in the negotiations themselves or in the examination of the dispute. Good offices are thus distinguished from mediation.

Good offices may be offered in peacetime as well as wartime. An example of the use of good offices which has had great progressive significance for international relationsis the Soviet Unions good offices that led to the meeting of Indian and Pakistani representatives and to the signing of the Tashkent Declaration of 1966. The basic procedures for offering good offices are set forth in the Hague Conventions of 1899 and 1907. Under the UNCharter, the UN Security Council in particular may offer its good offices to disputing parties (arts. 33, 36, and 38 ofthe UN Charter).

- Conciliation Conciliation is a relatively informal and unstructured process. During the conciliation process, neutrality and confidentiality are not usually guaranteed as the intervener is acting as an intermediary to promote improved communication and working relationships. Conciliation often is a cooling off forum where the conciliator may offer advice, perspectives and suggestions to deescalate a conflict.

- Arbitration 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.

III. International Dispute Resolutions - Overview of International Law

What is public international law?Public international law is a combination of rules and customs governing relations between states in different fields, such as armed conflict, human rights, the sea, space, trade, territorial boundaries, and diplomatic relations.

The United Nations Charter sets out the fundamental principles of modern public international law, notably:

Promotion of human rights;The strict limitation on the right to use force against other states;The strict prohibition on the acquisition of territory by force.

Subjects of international lawStates are the primary subject of international law. However, international law can also regulate the actions of other entities, namely: international organisations, non-state actors (including national liberation movements and individuals), international non-governmental organizations, and multinational companies. All can be defined as subjects of international law, and can be considered as having legal personality. This means that they have both duties and rights provided for by international law.

Public international law and the protection of human dignity

Several branches of public international law combine to protect universal values relating to human dignity. Each represents a tool of protection and all should be considered as complementary and must be applied comprehensively. These branches are: international humanitarian law, international refugee law, international criminal law and international human rights law.

What is the difference between public international law and private international law?Public international law comprises a body of rules which is concerned solely with the rights and obligations of sovereign states. For example the United Nations Charter is a central instrument of public international law.

Private international law, also referred to as conflict of laws, consists of rules which govern relations between private entities and decide which domestic law and/or courts can adjudicate issues with an international component. For example, if a Chinese company was to sign a contract with the United States, private international law would regulate the applicable law if that contract was violated.

Relationship between domestic and international law

The relationship between domestic and international law on a procedural level can be complex, particularly where a national court is applying international law directly. It is important to remember that domestic law cannot be used as a justification for a failure to meet an international responsibility.

In the words of Hersch Lauterpact, who is recognised as one of the founders of modern international law: "The self-evident principle of international law that a State cannot invoke its municipal law as the reason for the non-fulfillment of its international obligations.

Sources of international lawThe norms and rules of international law are codified in a range of treaties and other materials. The main sources of international law are:Treaty law: Such as the United Nations Charter and the Geneva Conventions;Customary international law: Established by state practice and legal intention;General principles of law recognised by civilised nations: Seen as inspirational rather than direct sources of the law. Examples of this are the principles of estoppel and equity.

State responsibility

One of the fundamental principles of international law provides that any state that violates its international obligations must be held accountable for its actions. More concretely, according to the notion of state responsibility, states that do not respect their international duties are obliged to immediately stop their illegal actions and make reparations to the injured parties. The principle of state responsibility forms part of international customary law and is binding upon all states.

Third States also have an obligation not to assist other states who are violating international law, and have a legal duty under Common Article 1 of the Geneva Conventions to ensure respect for IHL.

Grave violations of international Law: Jus cogens and erga omnes obligationsA number of rules of international law reflect "jus cogens" norms, also referred to as peremptory norms of international law.

Jus cogens status is reserved for the most fundamental rules of international law, which are recognised and accepted by the international community as rules of which no exceptions are allowed (article 53 of the Vienna Convention on the Law of Treaties). All states are obliged to adhere to jus cogens rules at all times, regardless of the circumstances, and these rules cannot be superceded by international agreements or treaties. Examples of jus cogens norms include the right of all peoples to self-determination, the prohibition on the acquisition of territory by force and the prohibition on genocide, slavery and torture.

Erga omnesThe violation of a number of provisions under international law - usually those that are categorised as jus cogens rules - gives rise to "erga omnes" obligations. Erga omnes is a Latin concept that translates as "towards all". When fundamental principles of international law are violated, an erga omnes obligation arises, meaning that all states have the right to take action. Examples of acts that would give rise to erga omnes obligations include piracy, genocide, slavery, torture and racial discrimination.

In July 2004 the International Court of Justice found "the right of peoples to self-determination" a be an erga omnes norm of international law.

Basic principles of international law (sovereignty, jurisdiction, independence, etc.)

When there is no provision in an international treaty or statute nor any recognized customary principle of international law available for application in an international dispute, the general principles of law can be used to fill the gap.

A most common way of resolving disputes under the rule of law is by reference to, and application of, the language of applicable multilateral or bilateral treaties or statutes, or some other writing which provides evidence of the relationship and past positions of the parties to a dispute. Another method is by reference to custom, the practice of nations in a particular area (customary international law) and principles of law derived from such.

But what happens when there is no such guiding authority for the benefit of those involved in resolving the dispute? Such gaps are inevitable in any legal system, including the international one, because treaties (contracts), statutes, and rules derived from custom cannot be designed to cover all situations which give rise to disputes. International law provides an answer to that question for the resolution of international disputes: general principles of law may used to fill the void or gap. These may be referred to, as one authority did, as nonconsensual sources of international law.

In the municipal law systems of countries with a common law tradition, judges very often look to the decisions from outside sources to fill in the gaps of the law to be applied in the resolution of a particular case. As an example, state courts in the United States very often cite the decisions of other state courts in the course of an opinion in a case, where a needed legal rule of the deciding state is absent or unclear. As a corollary, some justices of the Supreme Court of the United States have recently adopted the practice of using the decisions of courts of other countries and international courts for their persuasive value in clarifying unclear rules to be applied in a case.

In civil law countries, as Professor Mark Janis of the University of Connecticut Law School notes in his An Introduction to International Law:[L]awyers and judges in the civil law tradition are familiar with the problem of lacunae, gaps in the law, a concept based on the premise that only formal legislative institutions are empowered to make legal rules.

Thus, judges in civil law countries need statutory authority to fill in the gaps of the legislatively created legal rules. Must the civil law judge merely look at the statutes or decisions of courts in foreign jurisdictions for a fill in the gaps principle, or must the judge find explicit statutory authority for such practice, i.e. to find explicit authorization permitting courts to fill the legislative vacuum?

Fortunately for the international judge or the domestic judge faced with applying international law in a particular cause, the answer can be found in Article 38(1) of the Statute of the International Court of Justice. This provision specifically authorizes in listing the sources of law to be applied by the Court, treaties, customs and the general principles of law recognized by civilized nations. Professor Janis comments on this provision:

The basic notion is that a general principle of international law is some proposition of law so fundamental that it will be found in virtually every legal system. When treaties and customary international law fail to offer a needed international rule, a search may be launched in comparative law to discover if national legal systems use a common legal principle. If such a common legal principle is found, then it is presumed that a comparable principle should be attributed to fill the gap in international law.

An example cited among others by Professor Janis is the International Court of Justice decision in 1949 in the Corfu Channel case, which addressed the question of Albanian civil liability for the mining of the Corfu Channel and subsequent damage to two British naval vessels that resulted from striking mines. In discussing whether the United Kingdom could establish the knowledge and responsibility of Albania for the laying of the mines, the Courts opinion stated:

[T[he fact of this exclusive territorial control exercised by a State within its frontiers has a bearing upon the methods of proof available to establish the knowledge of that State as to such events. By reason of this exclusive control, the other State, the victim of a breach of international law, is often unable to furnish direct proof of facts giving rise to responsibility. Such a State should be allowed a more liberal recourse to inferences of fact and circumstantial evidence. This indirect evidence is admitted in all systems of law, and its use is recognized by international decisions. It must be regarded as of special weight when it is based on a series of facts linked together and leading logically to a single conclusion. (Emphasis added)

The existence of a body of legal principles and rules that are common to all, or almost all legal systems, is supported by some observations made by a British barrister, C. Wilfred Jenks, in his book The Common Law of Mankind, published under the auspices of the London Institute of World Affairs in 1958. In a section of the book titled Extent of the Influence of the Common and the Civil Law, Jenks observes that virtually all of the legal systems of the world, including those in Latin America, Islamic countries, African countries, countries within the former Soviet block, India, China, and Japan have been profoundly influenced in the course of their development by either the civil law or the common law. The result is that many principles of law are common to these legal systems. One only has to examine, for example, the law of contracts or torts or the criminal law relating to murder in these legal systems to understand the truth of this assertion. Thus the common law and the civil law, which by themselves share common principles of law, provide the basic framework that many general principles of law can be derived and used to fill the gap when there is no general principle of international law available for application in the resolution of a particular case.James G. Apple, Co-Editor of the International Judicial Monitor and President, International Judicial Academy

- Article 33, Paragraph 1 of the United Nations Charter Charter of the united Nations, Chapter VI: Pacific Settlement of DisputesArticle 331. The parties to any dispute, the continuance of which is likely to endanger the maintenance of international peace and security, shall, first of all, seek a solution by negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice.

- International Court of Justice.

The International Court of Justice (ICJ) is the principal judicial organ of the United Nations (UN). It was established in June 1945 by the Charter of the United Nations and began work in April 1946.The seat of the Court is at the Peace Palace in The Hague (Netherlands). Of the six principal organs of the United Nations, it is the only one not located in New York (United States of America).

The Courts role is to settle, in accordance with international law, legal disputes submitted to it by States and to give advisory opinions on legal questions referred to it by authorized United Nations organs and specialized agencies.

The Court is composed of 15 judges, who are elected for terms of office of nine years by the United Nations General Assembly and the Security Council. It is assisted by a Registry, its administrative organ. Its official languages are English and French.

- Some of Alternative Dispute Settlement Institutions

The Philippine Institute of Arbitrators (PIArb) is the first learned society in the Philippines dedicated to both promoting private dispute resolution within the country and pursuing initiatives to enable the country to serve as a viable and practical venue for private dispute resolution. The Philippine Institute of Arbitrators (PIArb) is the voice for private dispute resolution in the Philippines. PIArb envisions the use of arbitration and other modes of dispute resolution other than resolution by a court as the primary means of resolving conflict in the Philippines.

- Permanent Court of Arbitration (Hague Convention 1907)

Established by treaty at the First Hague Peace Conference in 1899, the Permanent Court of Arbitration is the oldest global institution for the settlement of international disputes. The Court offers a wide range of services for the resolution of international disputes which the parties concerned have expressly agreed to submit for resolution under its auspices. Unlike the International Court of Justice, the Permanent Court of Arbitration has no sitting judges: the parties themselves select the arbitrators. Another difference is that sessions of the Permanent Court of Arbitration are held in private and are confidential. The Court also provides arbitration in disputes between international organisations and between states and international organisations.

- International Chamber of Commerce (ICC) International Court of Arbitration

Established in 1923 as ICCs arbitration body, the International Court of Arbitration pioneered international commercial arbitration as it is known today, initiating and leading the movement that culminated in the adoption of the New York Convention, the most important multilateral treaty on international arbitration. The Court has also developed resolution mechanisms specifically conceived for business disputes in an international context. Such disputes pose unique challenges, usually because the parties will be of different nationalities, implying varied linguistic, legal and cultural backgrounds. Difficulties can be further compounded by distance, and the perceived or actual inequality for one party to submit to the courts of another partys home ground.

The Court provides parties with a flexible and neutral setting for dispute resolution. It offers confidentiality and extraordinary freedom for parties to choose the framework for how and where they want to resolve their dispute. While the dispute itself is resolved by independent arbitrators, the Court supervises the process from beginning to end, increasing the quality of the process and enforceability of the awards. There are no restrictions as to who can use ICC Arbitration or who can act as arbitrators. This is reflected in the increasing number of nationalities represented. Since its inception, the Court has administered more than 20,000 cases involving parties and arbitrators from some 180 countries.

The decision makers are called arbitrators, or collectively the arbitral tribunal. The arbitral tribunal comprises one or more independent individuals selected by the parties or appointed through a mechanism that the parties have agreed upon. An arbitral tribunals substantive decision is called an award. Awards in international arbitrations are not subject to any appeal (save in a very limited number of jurisdictions) and can be enforced under both domestic and international enforcement regimes including, notably, the 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards.The parties to an arbitration are free to agree on whether to use the Rules of the ICC International Court of Arbitration, the rules of another arbitral institution or no rules at all. Arbitration is the only alternative to court litigation for achieving a final, binding and enforceable resolution of a dispute. Due to its numerous advantages over litigation (explained below), arbitration has become the preferred and most widely used mechanism for resolving international commercial disputes. Businesses choose arbitration over litigation because of its neutrality, finality, enforceability, procedural flexibility, and the ability to choose the arbitrators.

- United Nations Commission on International Trade Law (1985 UNCITRAL Model Law On International Commercial Arbitration)

UNCITRAL is the core legal body of the United Nations system in the field of international trade law. A legal body with universal membership specializing in commercial law reform worldwide for over 40 years, UNCITRAL's business is the modernization and harmonization of rules on international business.Trade means faster growth, higher living standards, and new opportunities through commerce. In order to increase these opportunities worldwide, UNCITRAL is formulating modern, fair, and harmonized rules on commercial transactions. These include:Conventions, model laws and rules which are acceptable worldwideLegal and legislative guides and recommendations of great practical valueUpdated information on case law and enactments of uniform commercial lawTechnical assistance in law reform projectsRegional and national seminars on uniform commercial law

- 1958 New York Convention

ObjectivesRecognizing the growing importance of international arbitration as a means of settling international commercial disputes, the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the Convention) seeks to provide common legislative standards for the recognition of arbitration agreements and court recognition and enforcement of foreign and non-domestic arbitral awards. The term "non-domestic" appears to embrace awards which, although made in the state of enforcement, are treated as "foreign" under its law because of some foreign element in the proceedings, e.g. another State's procedural laws are applied.

The Convention's principal aim is that foreign and non-domestic arbitral awards will not be discriminated against and it obliges Parties to ensure such awards are recognized and generally capable of enforcement in their jurisdiction in the same way as domestic awards. An ancillary aim of the Convention is to require courts of Parties to give full effect to arbitration agreements by requiring courts to deny the parties access to court in contravention of their agreement to refer the matter to an arbitral tribunal.

How to become a partyThe Convention is open to accession by any Member State of the United Nations, any other State which is a member of any specialized agency of the United Nations, or is a Party to the Statute of the International Court of Justice (articles VIII and IX).

Case lawnewyorkconvention1958.orgCase Law on UNCITRAL Texts (CLOUT)

- How to Settle International Business Dispute

In any business there are two basic methods for dispute settlement - Litigation and arbitration. Litigation is highly suitable due to the proverbial delayed process, prohibition costs and uncertainty of decision.

But what are the basic Limitations of Litigation? How fast a litigation can be in export import business? Is it easy to educate and convince on judgments with proper documentary proof? How convenient to both exporter and importer under Litigation in international business? Will it affect both importer and exporter on their business due to bad image among public? How to effect trade relationship for both seller and buyer under litigation? Are international laws and procedures simple to handle? Let me discuss these areas also here:

Slow Process: As you know, almost all civil process of litigation is slow. Court process proverbially takes huge time consuming and formalistic.

Avoidable Necessity of Export Witness and other Evidence: In international contracts, practices, procedures and customs are different. A judge however well versed may be, in law, cannot be expected to know all these intricate matters. So, in courts, to educate the judge about these practices, witnesses who are experts and having knowledge in the field have to be produced to prove the practices, even before the evidence is established.

Inconvenience to the Parties: Court timing and date of hearings may not be convenient to litigants. Most of the time, cases are postponed and in that process months drag on even for completion of one witness. Even after days long waiting for hearing, one may know, at the end of the day, that the case is adjourned for two months due to non availability of the other advocate!

Adverse Public Image: Court proceedings are never secret. Media always covers the developments in important cases. Even the superior court judgments are published. Matters, which have been confidential till the case is brought to a court of law, become topics for public discussion that may bring notoriety, loss of goodwill and long-standing reputation.

Bitterness and Disruption of Trade Relationships: When a matter goes to a court of law, it is immaterial which party may win as the age old established relationship, after the case is brought to litigation in a court, comes to an end with only acrimony ad bitterness.

Different Laws and Procedures: International trade laws and procedures are more complicated. Litigation in foreign courts is more expensive and difficult in comparison to the domestic courts.

- Types of ArbitrationThere Are Two Types Of Arbitration:1. Voluntary Arbitration2. Compulsory Arbitration

Voluntary Arbitration Is A Binding, Adversarial Dispute Resolution Process In Which The Disputing Parties Choose One Or More Arbitrators To Hear Their Dispute And To Render A Final Decision Or Award After An Expedited Hearing.

Voluntary Arbitration Implies That The Two Contending Parties, Unable To Compromise Their Differences By Themselves Or With The Help Of Mediator Or Conciliator, Agree To Submit The Conflict/ Dispute To An Impartial Authority, Whose Decisions They Are Ready To Accept. In Other Words, Under Voluntary Arbitration The Parties To The Dispute Can And Do They Refer Voluntarily And Dispute To Arbitration Before It Is Referred For Adjudication. This Type Of Reference Is Known As Voluntary Reference, For The Parties Themselves Volunteer To Come To A Settlement Though An Arbitration Machinery.

The Essential Elements In Voluntary Arbitration Are : The Voluntary Submission Of Dispute To An Arbitrator. The Subsequent Attendance Of Witnesses And Investigations. The Enforcement Of An Award May Not Be Necessary And Binding Because There Is No Compulsion. Voluntary Arbitration May Be Specially Needed For Disputes Arising Under Agreements.

Compulsory Arbitration Is A Non-Binding, Adversarial Dispute Resolution Process In Which One Or More Arbitrators Hear Arguments, Weigh Evidence And Issue A Non-Binding Judgment On The Merits After An Expedited Hearing. The Arbitrator's Decision Addresses Only The Disputed Legal Issues And Applies Legal Standards. Either Party May Reject The Ruling And Request A Trial De Novo In Court.

Compulsory Arbitration Is One Where The Parties Are Required To Accept Arbitration Without Any Willingness On Their Part. When One Of The Parties To An Industrial Dispute Feels Aggrieved By An Act Of The Other, It May Apply To The Appropriate Government To Refer The Dispute To Adjudication Machinery. Such Reference Of A Dispute Is Known As Compulsory Or Involuntary Reference, Because Reference In Such Circumstances Does Not Depend On The Sweet Will Of Either The Contending Parties Or Any Party To The Dispute. It Is Entirely The Discretion Of The Appropriate Govt. Based On The Question Of Existing Dispute, Or On The Apprehension That Industrial Dispute Will Emerge In Particular Establishment.

Under Compulsory Arbitration, The Parties Are Forced To Arbitration By The State When: The Parties Fail To Arrive At A Settlement By A Voluntary Method When There Is A National Emergency Which Requires That The Wheels Of Production Should Not Be Obstructed By Frequent Work-Stoppages The Country Is Passing Through A Grave Economic Crisis There Is A Grave Public Dissatisfaction With The Existing Industrial Relations Public Interest And The Working Conditions Have To Be Safeguarded And Regulated By The State.

Compulsory Arbitration Leaves No Scope For Strikes And Lock-Outs; It Deprives Both The Parties Of Their Very Important And Fundamental Rights.

- Arbitral tribunal

An arbitral tribunal is a tribunal constituted for resolving a dispute by way of arbitration. It can consist of either a sole arbitrator or two or more arbitrators. An arbitral tribunal consisting of two or more arbitrators shall have a chairman or an umpire. The parties to a dispute are free to decide the composition of the tribunal. They can agree on the number of arbitrators. Where an arbitration clause of a legal system provides for two or any other even number of arbitrators, then the appointed arbitrators will select an additional arbitrator as a chairman of the tribunal to avoid deadlock that arises in reaching a decision. Arbitral tribunal is constituted in an ad hoc arbitration proceedings and institutional arbitration proceedings.

- Arbitration Proceedings

THE LAW GOVERNING THE ARBITRATION PROCEEDINGSThe issue of choosing the law governing the arbitration proceedings depends on the fact whether the arbitration agreement refers a matter to the permanent arbitration institution or to the ad hoc arbitration.

Basically, if the matter is referred to permanent arbitral institution, proceedings are held in accordance with the rules of said institution. For example, if the dispute is referred to ICC International Court of Arbitration, the proceeding is governed by their rules.

In ad hoc tribunals, the law governing the arbitration proceedings is determined from the seat of arbitration, meaning that the governing law in this case is the law of the seat of arbitration. If the parties have not designated the seat of arbitration, the proceedings are governed by the express choice of law of the merits of the dispute.

- Lex arbitri and the law of the subject matter

The Seat Theory What And Where Is It?In well-drafted international contracts, the arbitration clauses would state a particular location which would serve as the seat for the arbitration proceedings. By specifying the seat, this does not mean the physical seat or that the arbitration has to be held here. Rather, the choice of the seat signifies the adoption of the laws that governs arbitration at the chosen place. This is what is referred to as the seat theory.

When a particular place is mentioned in the arbitration agreement of parties, what this means is that they are deciding the juridical seat and lex arbitri.[17]And in Bank Mellat v Helliniki Techniki[18], Kerr LJ was quoted as saying that our jurisprudence does not recognise the concept of arbitral procedures floating in the transnational firmament, unconnected with any municipal system of law rather the legal system offers a shoulder for the arbitration proceedings to lean on.

Furthermore, where parties fail to specify the seat, the court or the arbitral tribunal is empowered to choose for them. Example of this authority could be found in the ICC Arbitration Rules.[19]

What Is The Significance Of The Lex Arbitri?The lex loci arbitri is the law of the place where arbitration is to take place and the opportunity of having to apply it to the arbitral proceeding thus not automatically regulate the entire proceedings of the arbitral tribunal as it mostly permits ample space for the application of the rules of other legal systems. The scope of its application is basically determined by the lex arbitri. The existence and the measure of the freedom of the parties in respect of the regulation of the arbitration proceedings are determined by the lex arbitri which should be taken as the starting point.[20]

Mandatory RulesThe lex arbitri[2]is a set of mandatory rules of law applicable to the arbitration at the seat of the arbitration.[3]It also can be defined as the juridical seat of arbitration.

Lex arbitri also determines the relationship between the arbitral tribunal and national courts.[4]For instance, what extent court intervention during the arbitral proceedings is authorized.

International commercial arbitration is presumed to be governed by the law of the place in which it is held.[5]This is the lex arbitri or the law of the seat of arbitration. But, it includes the principal of party autonomy, which allows the parties to choose the applicable law. The parties are free to choose rules, which govern their contract.[6]According to Geneva Protocol, the arbitral procedure, including the constitution of the arbitral tribunal, shall be governed by the will of the parties and by the law of the country in whose territory the arbitration takes place.[7]This article demonstrates that there is a strong link between the law of the country where the arbitration takes place and the law governing that arbitration (lex arbitri).The law of the arbitration agreement (lex arbitri), may be different from the proper law and the procedural law (curial law). Proper law of the contract governs issues of interpretation, performance, non-performance and liability under the contract and is determined by using the conflict of law rules.[8]Contracting parties usually insert a clause to determine the proper law to govern the contract. The lex arbitri is generally different from the proper law of the contract.[9]

On the other hand, the curial law is the law that governs the procedure of the arbitration. It can be said that, it is the part of the lex arbitri,[10]because, they are, in most cases, the same as the law of the seat of arbitration. And the parties generally do not separate them. Curial law is determined by parties choice, if there is no choice, the curial law is the law of the place of arbitration.[11]

- Award (rendering, recognition, enforcement, etc)

The Special ADR Rules provide that an agreement to refer a dispute to arbitration shall mean that the arbitral award shall be final and binding. Consequently, a party to an arbitration is generally precluded from filing an appeal or a petition for certiorari questioning the merits of an arbitral award.

Award in domestic arbitration. In domestic arbitration, the petition for confirmation, correction/modification or vacation of a domestic arbitral award may be filed with Regional Trial Court having jurisdiction over the place in which one of the parties is doing business, where any of the parties reside or where arbitration proceedings were conducted.

An arbitral award shall enjoy the presumption that it was made and released in due course of arbitration and is subject to confirmation by the court. In resolving the petition or petition in opposition thereto in accordance with the Special ADR Rules, the court shall either confirm or vacate the arbitral award. The court shall not disturb the arbitral tribunal's determination of facts and/or interpretation of law.

An arbitral award in domestic arbitration may be vacated on the following grounds a) the arbitral award was procured through corruption, fraud or other undue means; b) there was evident partiality or corruption in the arbitral tribunal or any of its members; c) the arbitral tribunal was guilty of misconduct or any form of misbehavior that has materially prejudiced the rights of any party such as refusing to postpone a hearing upon sufficient cause shown or to hear evidence pertinent and material to the controversy; d) one or more of the arbitrators was disqualified to act as such under the law and willfully refrained from disclosing such disqualification; or e) the arbitral tribunal exceeded its powers, or so imperfectly executed them, such that a complete, final and definite award upon the subject matter submitted to them was not made.

The award may also be vacated on any or all of the following grounds: a) the arbitration agreement did not exist, or is invalid for any ground for the revocation of a contract or is otherwise unenforceable; or b) a party to arbitration is a minor or a person judicially declared to be incompetent.

Award in international commercial arbitration. Any party to an international commercial arbitration in the Philippines may petition the proper court to recognize and enforce or set aside an arbitral award. An award may be set aside if the party making the application furnishes proof that: a) a party to the arbitration agreement was under some incapacity, or the said agreement is not valid under the law to which the parties have subjected it or, failing any indication thereof, under Philippine law; or b) the party making the application to set aside or resist enforcement was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings or was otherwise unable to present his case; or c) the award deals with a dispute not contemplated by or not falling within the terms of the submission to arbitration, or contains decisions on matters beyond the scope of the submission to arbitration; provided that, if the decisions on matters submitted to arbitration can be separated from those not so submitted, only that part of the award which contains decisions on matters not submitted to arbitration may be set aside or only that part of the award which contains decisions on matters submitted to arbitration may be enforced; or d) the composition of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement of the parties, unless such agreement was in conflict with a provision of Philippine law from which the parties cannot derogate, or, failing such agreement, was not in accordance with Philippine law.

An award may also be set aside if the court finds that: a) the subject-matter of the dispute is not capable of settlement by arbitration under the law of the Philippines; or b) the recognition or enforcement of the award would be contrary to public policy.

Recourse to a court against an arbitral award shall be made only through a petition to set aside the arbitral award and on grounds prescribed by the law that governs international commercial arbitration. Any other recourse from the arbitral award, such as by appeal or petition for review or petition for certiorari or otherwise, shall be dismissed by the court.

Foreign arbitral award. The recognition and enforcement of foreign arbitral awards, comes within the jurisdiction of the regional trial court and is governed by the Special ADR Rules. In case of foreign arbitral award, the court shall have no power to set aside the award, and it has limited grounds upon which to deny recognition and enforcement. The New York Convention provides that [e]ach Contracting State shall recognize arbitral awards as binding and enforce them in accordance with the rules of procedure of the territory where the award is relied uponThere shall not be imposed substantially more onerous conditions or higher fees or charges on the recognition and enforcement of arbitral awards to which this Convention applies than are imposed on the recognition or enforcement of domestic arbitral awards. The ADR Act allows for such enforcement.

A Philippine court shall not set aside a foreign arbitral award but may refuse it recognition and enforcement on any or all of the following grounds: a) The party making the application to refuse recognition and enforcement of the award furnishes proof that: i. a party to the arbitration agreement was under some incapacity; or the said agreement is not valid under the law to which the parties have subjected it or, failing any indication thereof, under the law of the country where the award was made; or ii. the party making the application was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings or was otherwise unable to present his case; or iii. the award deals with a dispute not contemplated by or not falling within the terms of the submission to arbitration, or contains decisions on matters beyond the scope of the submission to arbitration; provided that, if the decisions on matters submitted to arbitration can be separated from those not so submitted, only that part of the award which contains decisions on matters not submitted to arbitration may be set aside; or iv. the composition of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement of the parties or, failing such agreement, was not in accordance with the law of the country where arbitration took place; or v. the award has not yet become binding on the parties or has been set aside or suspended by a court of the country in which that award was made; or b) The court finds that: i. the subject-matter of the dispute is not capable of settlement or resolution by arbitration under Philippine law; or ii. the recognition or enforcement of the award would be contrary to public policy.

An appeal to the Court of Appeals through a petition for review is allowed from final orders of the Regional Trial Court a) granting or denying an interim measure of protection; denying a petition for appointment of an arbitrator; b) denying a petition for assistance in taking evidence; enjoining or refusing to enjoin a person from divulging confidential information; c) confirming, vacating or correcting/modifying a domestic arbitral award; setting aside an international commercial arbitration award; d) dismissing the petition to set aside an international commercial arbitration award even if the court does not decide to recognize or enforce such award; e) recognizing and/or enforcing an international commercial arbitration award; f) dismissing a petition to enforce an international commercial arbitration award; g) recognizing and/or enforcing a foreign arbitral award; h) refusing recognition and/or enforcement of a foreign arbitral award; i) granting or dismissing a petition to enforce a deposited mediated settlement agreement; and j) reversing the ruling of the arbitral tribunal upholding its jurisdiction.

If the decision of the Regional Trial Court refusing to recognize and/or enforce, vacating and/or setting aside an arbitral award is premised on a finding of fact, the Court of Appeals may inquire only into such fact to determine the existence or non-existence of the specific ground under the arbitration laws of the Philippines relied upon by the Regional Trial Court to refuse to recognize and/or enforce, vacate and/or set aside an award. Any such inquiry into a question of fact shall not be resorted to for the purpose of substituting the court's judgment for that of the arbitral tribunal as regards the latter's ruling on the merits of the controversy.A review by the Supreme Court is not a matter of right, but of sound judicial discretion, which will be granted only for serious and compelling reasons resulting in grave prejudice to the aggrieved party.

The following, while neither controlling nor fully measuring the court's discretion, indicate the serious, compelling and necessarily restrictive nature of the grounds that will warrant the exercise of the Supreme Court's discretionary powers, when the Court of Appeals: a) failed to apply the applicable standard or test for judicial review prescribed in the Special ADR Rules in arriving at its decision resulting in substantial prejudice to the aggrieved party; b) erred in upholding a final order or decision despite the lack of jurisdiction of the court that rendered such final order or decision; c) failed to apply any provision, principle, policy or rule contained in the Special ADR Rules resulting in substantial prejudice to the aggrieved party; andd) committed an error so egregious and harmful to a party as to amount to an undeniable excess of jurisdiction.

Source: https://ppp.gov.ph/wp-content/uploads/2015/01/Dispute-Resolution-Final-Draft-asof 2013Jan24.pdf

IV. Domestic Dispute Resolutions - Introduction to Domestic Dispute Resolution

A domestic dispute is generally any quarrel, which may or may not include violence, within a family or between members of the same household. Definitions are governed by local laws, which vary, and may also cover including any child or an adult or fully emancipated minor who is a spouse, former spouse, cohabitant, former cohabitant or person with whom a suspect has had a child or has or has had a dating or engagement relationship. It may or may not include criminal behavior. Local laws should be consulted for specific requirements in your area.

In a domestic disturbance an officer has every reason to suspect foul play.[Dean v. State, 2003 Tex. App. LEXIS 10044, 6-7 (Tex. App. 2003)]

Domestic dispute is also termed as domestic disturbance or family disturbance.

- Arbitration Law (Republic Act No. 876)

Republic Act No. 876AN ACT TO AUTHORIZE THE MAKING OF ARBITRATION AND SUBMISSION AGREEMENTS, TO PROVIDE FOR THE APPOINTMENT OF ARBITRATORS AND THE PROCEDURE FOR ARBITRATION IN CIVIL CONTROVERSIES, AND FOR OTHER PURPOSES

Section 1.Short Title. This Act shall be known as The Arbitration Law.

Section 2.Persons and matters subject to arbitration. Two or more persons or parties may submit to the arbitration of one or more arbitrators any controversy existing between them at the time of the submission and which may be the subject of an action, or the parties to any contract may in such contract agree to settle by arbitration a controversy thereafter arising between them. Such submission or contract shall be valid, enforceable and irrevocable, save upon such grounds as exist at law for the revocation of any contract.Such submission or contract may include question arising out of valuations, appraisals or other controversies which may be collateral, incidental, precedent or subsequent to any issue between the parties.A controversy cannot be arbitrated where one of the parties to the controversy is an infant, or a person judicially declared to be incompetent, unless the appropriate court having jurisdiction approve a petition for permission to submit such controversy to arbitration made by the general guardian or guardian ad litem of the infant or of the incompetent.But where a person capable of entering into a submission or contract has knowingly entered into the same with a person incapable of so doing, the objection on the ground of incapacity can be taken only in behalf of the person so incapacitated.

Section 3.Controversies or cases not subject to the provisions of this Act. This Act shall not apply to controversies and to cases which are subject to the jurisdiction of the Court of Industrial Relations or which have been submitted to it as provided by Commonwealth Act Numbered One hundred and three, as amended.

Section 4.Form of arbitration agreement. 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.The making of a contract or submission for arbitration described in section two hereof, providing for arbitration of any controversy, shall be deemed a consent of the parties to the jurisdiction of the Court of First Instance of the province or city where any of the parties resides, to enforce such contract or submission.

Section 5.Preliminary procedure. An arbitration shall be instituted by:(a) In the case of a contract to arbitrate future controversies by the service by either party upon the other of a demand for arbitration in accordance with the contract. Such demand shall be set forth the nature of the controversy, the amount involved, if any, and the relief sought, together with a true copy of the contract providing for arbitration. The demand shall be served upon any party either in person or by registered mail. In the event that the contract between the parties provides for the appointment of a single arbitrator, the demand shall be set forth a specific time within which the parties shall agree upon such arbitrator. If the contract between the parties provides for the appointment of three arbitrators, one to be selected by each party, the demand shall name the arbitrator appointed by the party making the demand; and shall require that the party upon whom the demand is made shall within fifteen days after receipt thereof advise in writing the party making such demand of the name of the person appointed by the second party; such notice shall require that the two arbitrators so appointed must agree upon the third arbitrator within ten days from the date of such notice.(b) In the event that one party defaults in answering the demand, the aggrieved party may file with the Clerk of the Court of First Instance having jurisdiction over the parties, a copy of the demand for arbitration under the contract to arbitrate, with a notice that the original demand was sent by registered mail or delivered in person to the party against whom the claim is asserted. Such demand shall set forth the nature of the controversy, the amount involved, if any, and the relief sought, and shall be accompanied by a true copy of the contract providing for arbitration.(c) In the case of the submission of an existing controversy by the filing with the Clerk of the Court of First Instance having jurisdiction, of the submission agreement, setting forth the nature of the controversy, and the amount involved, if any. Such submission may be filed by any party and shall be duly executed by both parties.(d) In the event that one party neglects, fails or refuses to arbitrate under a submission agreement, the aggrieved party shall follow the procedure prescribed in subparagraphs (a) and (b) of this section.

Section 6.Hearing by court. A party aggrieved by the failure, neglect or refusal of another to perform under an agreement in writing providing for arbitration may petition the court for an order directing that such arbitration proceed in the manner provided for in such agreement. Five days notice in writing of the hearing of such application shall be served either personally or by registered mail upon the party in default. The court shall hear the parties, and upon being satisfied that the making of the agreement or such failure to comply therewith is not in issue, shall make an order directing the parties to proceed to arbitration in accordance with the terms of the agreement. If the making of the agreement or default be in issue the court shall proceed to summarily hear such issue. If the finding be that no agreement in writing providing for arbitration was made, or that there is no default in the proceeding thereunder, the proceeding shall be dismissed. If the finding be that a written provision for arbitration was made and there is a default in proceeding thereunder, an order shall be made summarily directing the parties to proceed with the arbitration in accordance with the terms thereof.The court shall decide all motions, petitions or applications filed under the provisions of this Act, within ten days after such motions, petitions, or applications have been heard by it.

Section 7.Stay of civil action. If any suit or proceeding be brought upon an issue arising out of an agreement providing for the arbitration thereof, the court in which such suit or proceeding is pending, upon being satisfied that the issue involved in such suit or proceeding is referable to arbitration, shall stay the action or proceeding until an arbitration has been had in accordance with the terms of the agreement: Provided, That the applicant, for the stay is not in default in proceeding with such arbitration.

Section 8.Appointment of arbitrators. If, in the contract for arbitration or in the submission described in section two, provision is made for a method of naming or appointing an arbitrator or arbitrators, such method shall be followed; but if no method be provided therein the Court of First Instance shall designate an arbitrator or arbitrators.The Court of First Instance shall appoint an arbitrator or arbitrators, as the case may be, in the following instances:(a) If the parties to the contract or submission are unable to agree upon a single arbitrator; or(b) If an arbitrator appointed by the parties is unwilling or unable to serve, and his successor has not been appointed in the manner in which he was appointed; or(c) If either party to the contract fails or refuses to name his arbitrator within fifteen days after receipt of the demand for arbitration; or(d) If the arbitrators appointed by each party to the contract, or appointed by one party to the contract and by the proper Court, shall fail to agree upon or to select the third arbitrator.(e) The court shall, in its discretion appoint one or three arbitrators, according to the importance of the controversy involved in any of the preceding cases in which the agreement is silent as to the number of arbitrators.(f) Arbitrators appointed under this section shall either accept or decline their appointments within seven days of the receipt of their appointments. In case of declination or the failure of an arbitrator or arbitrators to duly accept their appointments the parties or the court, as the case may be, shall proceed to appoint a substitute or substitutes for the arbitrator or arbitrators who decline or failed to accept his or their appointments.

Section 9.Appointment of additional arbitrators. Where a submission or contract provides that two or more arbitrators therein designated or to be thereafter appointed by the parties, may select or appoint a person as an additional arbitrator, the selection or appointment must be in writing. Such additional arbitrator must sit with the original arbitrators upon the hearing.

Section 10.Qualifications of arbitrators. Any person appointed to serve as an arbitrator must be of legal age, in full-enjoyment of his civil rights and know how to read and write. No person appointed to served as an arbitrator shall be related by blood or marriage within the sixth degree to either party to the controversy. No person shall serve as an arbitrator in any proceeding if he has or has had financial, fiduciary or other interest in the controversy or cause to be decided or in the result of the proceeding, or has any personal bias, which might prejudice the right of any party to a fair and impartial award.No party shall select as an arbitrator any person to act as his champion or to advocate his cause.If, after appointment but before or during hearing, a person appointed to serve as an arbitrator shall discover any circumstances likely to create a presumption of bias, or which he believes might disqualify him as an impartial arbitrator, the arbitrator shall immediately disclose such information to the parties. Thereafter the parties may agree in writing:(a) to waive the presumptive disqualifying circumstances; or(b) to declare the office of such arbitrator vacant. Any such vacancy shall be filled in the same manner as the original appointment was made.

Section 11.Challenge of arbitrators. The arbitrators may be challenged only for the reasons mentioned in the preceding section which may have arisen after the arbitration agreement or were unknown at the time of arbitration.The challenge shall be made before them.If they do not yield to the challenge, the challenging party may renew the challenge before the Court of First Instance of the province or city in which the challenged arbitrator, or, any of them, if there be more than one, resides. While the challenging incident is discussed before the court, the hearing or arbitration shall be suspended, and it shall be continued immediately after the court has delivered an order on the challenging incident.

Section 12.Procedure by arbitrators. Subject to the terms of the submission or contract, if any are specified therein, are arbitrators selected as prescribed herein must, within five days after appointment if the parties to the controversy reside within the same city or province, or within fifteen days after appointment if the parties reside in different provinces, set a time and place for the hearing of the matters submitted to them, and must cause notice thereof to be given to each of the parties. The hearing can be postponed or adjourned by the arbitrators only by agreement of the parties; otherwise, adjournment may be ordered by the arbitrators upon their own motion only at the hearing and for good and sufficient cause. No adjournment shall extend the hearing beyond the day fixed in the submission or contract for rendering the award, unless the time so fixed is extended by the written agreement of the parties to the submission or contract or their attorneys, or unless the parties have continued with the arbitration without objection to such adjournment.The hearing may proceed in the absence of any party who, after due notice, fails to be present at such hearing or fails to obtain an adjournment thereof. An award shall not be made solely on the default of a party. The arbitrators shall require the other party to submit such evidence as they may require for making an award.No one other than a party to said arbitration, or a person in the regular employ of such party duly authorized in writing by said party, or a practicing attorney-at-law, shall be permitted by the arbitrators to represent before him or them any party to the arbitration. Any party desiring to be represented by counsel shall notify the other party or parties of such intention at least five days prior to the hearing.The arbitrators shall arrange for the taking of a stenographic record of the testimony when such a record is requested by one or more parties, and when payment of the cost thereof is assumed by such party or parties.Persons having a direct interest in the controversy which is the subject of arbitration shall have the right to attend any hearing; but the attendance of any other person shall be at the discretion of the arbitrators.

Section 13.Oath of arbitrators. Before hearing any testimony, arbitrators must be sworn, by any officer authorized by law to administer an oath, faithfully and fairly to hear and examine the matters in controversy and to make a just award according to the best of their ability and understanding. Arbitrators shall have the power to administer the oaths to all witnesses requiring them to tell the whole truth and nothing but the truth in any testimony which they may give in any arbitration hearing. This oath shall be required of every witness before any of his testimony is heard.

Section 14.Subpoena and subpoena duces tecum. Arbitrators shall have the power to require any person to attend a hearing as a witness. They shall have the power to subpoena witnesses and documents when the relevancy of the testimony and the materiality thereof has been demonstrated to the arbitrators. Arbitrators may also require the retirement of any witness during the testimony of any other witness. All of the arbitrators appointed in any controversy must attend all the hearings in that matter and hear all the allegations and proofs of the parties; but an award by the majority of them is valid unless the concurrence of all of them is expressly required in the submission or contract to arbitrate. The arbitrator or arbitrators shall have the power at any time, before rendering the award, without prejudice to the rights of any party to petition the court to take measures to safeguard and/or conserve any matter which is the subject of the dispute in arbitration.

Section 15.Hearing by arbitrators. Arbitrators may, at the commencement of the hearing, ask both parties for brief statements of the issues in controversy and/or an agreed statement of facts. Thereafter the parties may offer such evidence as they desire, and shall produce such additional evidence as the arbitrators shall require or deem necessary to an understanding and determination of the dispute. The arbitrators shall be the sole judge of the relevancy and materiality of the evidence offered or produced, and shall not be bound to conform to the Rules of Court pertaining to evidence. Arbitrators shall receive as exhibits in evidence any document which the parties may wish to submit and the exhibits shall be properly identified at the time of submission. All exhibits shall remain in the custody of the Clerk of Court during the course of the arbitration and shall be returned to the parties at the time the award is made. The arbitrators may make an ocular inspection of any matter or premises which are in dispute, but such inspection shall be made only in the presence of all parties to the arbitration, unless any party who shall have received notice thereof fails to appear, in which event such inspection shall be made in the absence of such party.

Section 16.Briefs. At the close of the hearings, the arbitrators shall specifically inquire of all parties whether they have any further proof or witnesses to present; upon the receipt of a negative reply from all parties, the arbitrators shall declare the hearing closed unless the parties have signified an intention to file briefs. Then the hearing shall be closed by the arbitrations after the receipt of briefs and/or reply briefs. Definite time limit for the filing of such briefs must be fixed by the arbitrators at the close of the hearing. Briefs may filed by the parties within fifteen days after the close of the oral hearings; the reply briefs, if any, shall be filed within five days following such fifteen-day period.

Section 17.Reopening of hearing. The hearing may be reopened by the arbitrators on their own motion or upon the request of any party, upon good cause, shown at any time before the award is rendered. When hearings are thus reopened the effective date for the closing of the hearings shall be the date of the closing of the reopened hearing.

Section 18.Proceeding in lieu of hearing. The parties to a submission or contract to arbitrate may, by written agreement, submit their dispute to arbitration by other than oral hearing. The parties may submit an agreed statement of facts. They may also submit their respective contentions to the duly appointed arbitrators in writing; this shall include a statement of facts, together with all documentary proof. Parties may also submit a written argument. Each party shall provide all other parties to the dispute with a copy of all statements and documents submitted to the arbitrators. Each party shall have an opportunity to reply in writing to any other partys statements and proofs; but if such party fails to do so within seven days after receipt of such statements and proofs, he shall be deemed to have waived his right to reply. Upon the delivery to the arbitrators of all statements and documents, together with any reply statements, the arbitrators shall declare the proceedings in lieu of hearing closed.

Section 19.Time for rendering award. Unless the parties shall have stipulated by written agreement the time within which the arbitrators must render their award, the written award of the arbitrators shall be rendered within thirty days after the closing of the hearings or if the oral hearings shall have been waived, within thirty days after the arbitrators shall have declared such proceedings in lieu of hearing closed. This period may be extended by mutual consent of the parties.alf-itc

Section 20.Form and contents of award. The award must be made in writing and signed and acknowledged by a majority of the arbitrators, if more than one; and by the sole arbitrator, if there is only one. Each party shall be furnished with a copy of the award. The arbitrators in their award may grant any remedy or relief which they deem just and equitable and within the scope of the agreement of the parties, which shall include, but not be limited to, the specific performance of a contract.In the event that the parties to an arbitration have, during the course of such arbitration, settled their dispute, they may request of the arbitrators that such settlement be embodied in an award which shall be signed by the arbitrators. No arbitrator shall act as a mediator in any proceeding in which he is acting as arbitrator; and all negotiations towards settlement of the dispute must take place without the presence of the arbitrators.The arbitrators shall have the power to decide only those matters which have been submitted to them. The terms of the award shall be confined to such disputes.The arbitrators shall have the power to assess in their award the expenses of any party against another party, when such assessment shall be deemed necessary.

Section 21.Fees of arbitration. The fees of the arbitrators shall be fifty pesos per day unless the parties agree otherwise in writing prior to the arbitration.

Section 22.Arbitration deemed a special proceeding. Arbitration under a contract or submission shall be deemed a special proceeding, of which the court specified in the contract or submission, or if none be specified, the Court of First Instance for the province or city in which one of the parties resides or is doing business, or in which the arbitration was held, shall have jurisdiction. Any application to the court, or a judge thereof, hereunder shall be made in manner provided for the making and hearing of motions, except as otherwise herein expressly provided.

Section 23.Confirmation of award. At any time within one month after the award is made, any party to the controversy which was arbitrated may apply to the court having jurisdiction, as provided in section twenty-eight, for an order confirming the award; and thereupon the court must grant such order unless the award is vacated, modified or corrected, as prescribed herein. Notice of such motion must be served upon the adverse party or his attorney as prescribed by law for the service of such notice upon an attorney in action in the same court.

Section 24.Grounds for vacating award. In any one of the following cases, the court must make an order vacating the award upon the petition of any party to the controversy when such party proves affirmatively that in the arbitration proceedings:(a) The award was procured by corruption, fraud, or other undue means; or(b) That there was evident partiality or corruption in the arbitrators or any of them; or(c) That the arbitrators were guilty of misconduct in refusing to postpone the hearing upon sufficient cause shown, or in refusing to hear evidence pertinent and material to the controversy; that one or more of the arbitrators was disqualified to act as such under section nine hereof, and wilfully refrained from disclosing such disqualifications or of any other misbehavior by which the rights of any party have been materially prejudiced; or(d) That the arbitrators exceeded their powers, or so imperfectly executed them, that a mutual, final and definite award upon the subject matter submitted to them was not made.Where an award is vacated, the court, in its discretion, may direct a new hearing either before the same arbitrators or before a new arbitrator or arbitrators to be chosen in the manner provided in the submission or contract for the selection of the original arbitrator or arbitrators, and any provision limiting the time in which the arbitrators may make a decision shall be deemed applicable to the new arbitration and to commence from the date of the courts order.Where the court vacates an award, costs, not exceeding fifty pesos and disbursements may be awarded to the prevailing party and the payment thereof may be enforced in like manner as the payment of costs upon the motion in an action.

Section 25.Grounds for modifying or correcting award. In any one of the following cases, the court must make an order modifying or correcting the award, upon the application of any party to the controversy which was arbitrated:(a) Where there was an evident miscalculation of figures, or an evident mistake in the description of any person, thing or property referred to in the award; or(b) Where the arbitrators have awarded upon a matter not submitted to them, not affecting the merits of the decision upon the matter submitted; or(c) Where the award is imperfect in a matter of form not affecting the merits of the controversy, and if it had been a commissioners report, the defect could have been amended or disregarded by the court.The order may modify and correct the award so as to effect the intent thereof and promote justice between the parties.

Section 26.Motion to vacate, modify or correct award: when made. Notice of a motion to vacate, modify or correct the award must be served upon the adverse party or his counsel within thirty days after award is filed or delivered, as prescribed by law for the service upon an attorney in an action.

Section 27.Judgment.Upon the granting of an order confirming, modifying or correcting an award, judgment may be entered in conformity therewith in the court wherein said application was filed. Costs of the application and the proceedings subsequent thereto may be awarded by the court in its discretion. If awarded, the amount thereof must be included in the judgment.

Section 28.Papers to accompany motion to confirm, modify, correct, or vacate award. The party moving for an order confirming, modifying, correcting, or vacating an award, shall at the time that such motion is filed with the court for the entry of judgment thereon also file the following papers with the Clerk of Court;(a) The submission, or contract to arbitrate; the appointment of the arbitrator or arbitrators; and each written extension of the time, if any, within which to make the award.(b) A verified of the award.(c) Each notice, affidavit, or other paper used upon the application to confirm, modify, correct or vacate such award, and a copy of each of the court upon such application.The judgment shall be docketed as if it were rendered in an action.The judgment so entered shall have the same force and effect in all respects, as, and be subject to all the provisions relating to, a judgment in an action; and it may be enforced as if it had been rendered in the court in which it is entered.

Section 29.Appeals. An appeal may be taken from an order made in a proceeding under this Act, or from a judgment entered upon an award through certiorari proceedings, but such appeals shall be limited to questions of law. The proceedings upon such an appeal, including the judgment thereon shall be governed by the Rules of Court in so far as they are applicable.

Section 30.Death of party. Where a party dies after making a submission or a contract to arbitrate as prescribed in this Act, the proceedings may be begun or continued upon the application of, or notice to, his executor or administrator, or temporary administrator of his estate. In any such case, the court may issue an order extending the time within which notice of a motion to confirm, vacate, modify or correct an award must be served. Upon confirming an award, where a party has died since it was filed or delivered, the court must enter judgment in the name of the original party; and the proceedings thereupon are the same as where a party dies after a verdict.

Section 31.Repealing clause. The provisions of chapters one and two, Title XIV, of the Civil Code shall remain in force. All other laws and parts of laws inconsistent with this Act are hereby repealed. If any provision of this Act shall be held invalid the remainder that shall not be affected thereby.

Section 32.Effectivity. This Act shall take effect six months after its approval.Approved: June 19, 1953

- Alternative Dispute Resolution Act of 2004 (Republic Act No. 9285)

Republic of the PhilippinesCongress of the PhilippinesMetro ManilaTwelfth CongressThird Regular SessionBegun and held in Metro Manila, on Monday, the twenty-eight day of July, two thousand three.

Republic Act No. 9285 April 2, 2004

AN ACT TO INSTITUTIONALIZE THE USE OF AN ALTERNATIVE DISPUTE RESOLUTION SYSTEM IN THE PHILIPPINES AND TO ESTABLISH THE OFFICE FOR ALTERNATIVE DISPUTE RESOLUTION, AND FOR OTHER PURPOSESBe it enacted by the Senate and House of Representatives of the Philippines in Congress assembled:

CHAPTER 1 GENERAL PROVISIONS

SECTION 1.Title. This act shall be known as the Alternative Dispute Resolution Act of 2004.

SEC. 2.Declaration of Policy. 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. Towards this end, the State shall encourage and actively promote the use of Alternative Dispute Resolution (ADR) as an important means to achieve speedy and impartial justice and declog court dockets. As such, the State shall provide means for the use of ADR as an efficient tool and an alternative procedure for the resolution of appropriate cases. Likewise, the State shall enlist active private sector participation in the settlement of disputes through ADR. This Act shall be without prejudice to the adoption by the Supreme Court of any ADR system, such as mediation, conciliation, arbitration, or any combination thereof as a means of achieving speedy and efficient means of resolving cases pending before all courts in the Philippines which shall be governed by such rules as the Supreme Court may approve from time to time.

SEC. 3.Definition of Terms. For purposes of this Act, the term:(a) Alternative Dispute Resolution System means any process or procedure used to resolve a dispute or controversy, other than by adjudication of a presiding judge of a court or an officer of a government agency, as defined in this Act, in which a neutral third party participates to assist in the resolution of issues, which includes arbitration, mediation, conciliation, early neutral evaluation, mini-trial, or any combination thereof;(b) ADR Provider means institutions or persons accredited as mediator, conciliator, arbitrator, neutral evaluator, or any person exercising similar functions in any Alternative Dispute Resolution system. This is without prejudice to the rights of the parties to choose nonaccredited individuals to act as mediator, conciliator, arbitrator, or neutral evaluator of their dispute.Whenever reffered to in this Act, the term ADR practitioners shall refer to individuals acting as mediator, conciliator, arbitrator or neutral evaluator;(c) Authenticate means to sign, execute or adopt a symbol, or encrypt a record in whole or in part, intended to identity the authenticating party and to adopt, accept or establish the authenticity of a record or term;(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;(e) Arbitrator means the person appointed to render an award, alone or with others, in a dispute that is the subject of an arbitration agreement;(f) Award means any partial or final decision by an arbitrator in resolving the issue in a controversy;(g) Commercial Arbitration An arbitration is commercial if it covers matter arising from all relationships of a commercial nature, whether contractual or not;(h) Confidential information means any information, relative to the subject of mediation or arbitration, expressly intended by the source not to be disclosed, or obtained under circumstances that would create a reasonable expectation on behalf of the source that the information shall not be disclosed. It shall include (1) communication, oral or written, made in a dispute resolution proceedings, including any memoranda, notes or work product of the neutral party or non-party participant, as defined in this Act; (2) an oral or written statement made or which occurs during mediation or for purposes of considering, conducting, participating, initiating, continuing of reconvening mediation or retaining a mediator; and (3) pleadings, motions manifestations, witness statements, reports filed or submitted in an arbitration or for expert evaluation;(i) Convention Award means a foreign arbitral award made in a Convention State;(j) Convention State means a State that is a member of the New York Convention;(k) Court as referred to in Article 6 of the Model Law shall mean a Regional Trial Court;(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;(o) Government Agency means any government entity, office or officer, other than a court, that is vested by law with quasi-judicial power to resolve or adjudicate dispute involving the government, its agencies and instrumentalities, or private persons;(p) International Party shall mean an entity whose place of business is outside the Philippines. It shall not include a domestic subsidiary of such international party or a coventurer in a joint venture with a party which has its place of business in the Philippines.The term foreigner arbitrator shall mean a person who is not a national of the Philippines.(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.(r) Mediator means a person who conducts mediation;(s) Mediation Party means a person who participates in a mediation and whose consent is necessary to resolve 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;(v) Model Law means the Model Law on International Commercial Arbitration adopted by the United Nations Commission on International Trade Law on 21 June 1985;(w) New York Convention means the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards approved in 1958 and ratified by the Philippine Senate under Senate Resolution No. 71;(x) Non-Convention Award means a foreign arbitral award made in a State which is not a Convention State;(y) Non-Convention State means a State that is not a member of the New York Convention.(z) Non-Party Participant means a person, other than a party or mediator, who participates in a mediation proceeding as a witness, resource person or expert;(aa) Proceeding means a judicial, administrative, or other adjudicative process, including related pre-hearing motions, conferences and discovery;(bb) Record means an information written on a tangible medium or stored in an electronic or other similar medium, retrievable form; and(cc) Roster means a list of persons qualified to provide ADR services as neutrals or to serve as arbitrators.

SEC. 4.Electronic Signatures in Global and E-Commerce Act. The provisions of the Electronic Signatures in Global and E-Commerce Act, and its implementing Rules and Regulations shall apply to proceeding contemplated in this Act.

SEC. 5.Liability of ADR Provider and Practitioner. The ADR providers and practitioners shall have the same civil liability for the Acts done in the performance of then duties as that of public officers as provided in Section 38 (1), Chapter 9, Book of the Administrative Code of 1987.

SEC. 6.Exception to the Application of this Act. The provisions of this Act shall not apply to resolution or settlement of the following: (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.

CHAPTER 2 MEDIATION

SEC. 7.Scope. The provisions of this Chapter shall cover voluntary mediation, whether ad hoc or institutional, other than court-annexed. The term mediation shall include conciliation.

SEC. 8.Application and Interpretation. In applying construing the provisions of this Chapter, consideration must be given to the need to promote candor or parties and mediators through confidentiality of the mediation process, the policy of fostering prompt, economical, and amicable resolution of disputes in accordance with the principles of integrity of determination by the parties, and the policy that the decision-making authority in the mediation process rests with the parties.

SEC. 9.Confidentiality of Information. Information obtained through mediation proceedings shall be subject to the following principles and guidelines:(a) Information obtained through mediation shall be privileged and confidential.(b) A party, a mediator, or a nonparty participant may refuse to disclose and may prevent any other person from disclosing a mediation communication.(c) Confidential Information shall not be subject to discovery and shall be inadmissible if any adversarial proceeding, whether judicial or quasi-judicial, However, evidence or information that is otherwise admissible or subject to discovery does not become inadmissible or protected from discovery solely by reason of its use in a mediation.(d) In such an adversarial proceeding, the following persons involved or previously involved in a mediation may not be compelled to disclose confidential information obtained during mediation: (1) the parties to the dispute; (2) the mediator or mediators; (3) the counsel for the parties; (4) the nonparty participants; (5) any persons hired or engaged in connection with the mediation as secretary, stenographer, clerk or assistant; and (6) any other person who obtains or possesses confidential information by reason of his/her profession.(e) The protections of this Act shall continue to apply even of a mediator is found to have failed to act impartially.(f) a mediator may not be called to testify to provide information gathered in mediation. A mediator who is wrongfully subpoenaed shall be reimbursed the full cost of his attorneys fees and related expenses.

SEC. 10.Waiver of Confidentiality. A privilege arising from the confidentiality of information may be waived in a record, or orally during a proceeding by the mediator and the mediation parties.A privilege arising from the confidentiality of information may likewise be waived by a nonparty participant if the information is provided by such nonparty participant.A person who discloses confidential information shall be precluded from asserting the privilege under Section 9 of this Chapter to bar disclosure of the rest of the information necessary to a complete understanding of the previously disclosed information. If a person suffers loss or damages in a judicial proceeding against the person who made the disclosure.A person who discloses or makes a representation about a mediation is preclude from asserting the privilege under Section 9, to the extent that the communication prejudices another person in the proceeding and it is necessary for the person prejudiced to respond to the representation of disclosure.

SEC. 11.Exceptions to Privilege.(a) There is no privilege against disclosure under Section 9 if mediation communication is:(1) in an agreement evidenced by a record authenticated by all parties to the agreement;(2) available to the public or that is made during a session of a mediation which is open, or is required by law to be open, to the public;(3) a threat or statement of a plan to inflict bodily injury or commit a crime of violence;(4) internationally used to plan a crime, attempt to commit, or commit a crime, or conceal an ongoing crime or criminal activity;(5) sought or offered to prove or disprove abuse, neglect, abandonment, or exploitation in a proceeding in which a public agency is protecting the interest of an individual protected by law; but this exception does not apply where a child protection matter is referred to mediation by a court or a public agency participates in the child protection mediation;(6) sought or offered to prove or disprove a claim or complaint of professional misconduct or malpractice filed against mediator in a proceeding; or(7) sought or offered to prove or disprove a claim of complaint of professional misconduct of malpractice filed against a party, nonparty participant, or representative of a party based on conduct occurring during a mediation.(b) There is no privilege under Section 9 if a court or administrative agency, finds, after a hearing in camera, that the party seeking discovery of the proponent of the evidence has shown that the evidence is not otherwise available, that there is a need for the evidence that substantially outweighs the interest in protecting confidentiality, and the mediation communication is sought or offered in:(1) a court proceeding involving a crime or felony; or(2) a proceeding to prove a claim or defense that under the law is sufficient to reform or avoid a liability on a contract arising out of the mediation.(c) A mediator may not be compelled to provide evidence of a mediation communication or testify in such proceeding.(d) If a mediation communication is not privileged under an exception in subsection (a) or (b), only the portion of the communication necessary for the application of the exception for nondisclosure may be admitted. The admission of particular evidence for the limited purpose of an exception does not render that evidence, or any other mediation communication, admissible for any other purpose.

SEC. 12.Prohibited Mediator Reports. A mediator may not make a report, assessment, evaluation, recommendation, finding, or other communication regarding a mediation to a court or agency or other authority that make a ruling on a dispute that is the subject of a mediation, except:(a) Where the mediation occurred or has terminated, or where a settlement was reached.(b) As permitted to be disclosed under Section 13 of this Chapter.

SEC. 13.Mediators Disclosure and Conflict of Interest. The mediation shall be guided by the following operative principles:(a) Before accepting a mediation, an individual who is requested to serve as a mediator shall:(1) make an inquiry that is reasonable under the circumstances to determinate whether there are any known facts that a reasonable individual would consider likely to affect the impartiality of the mediator, including a financial or personal interest in the outcome of the mediation and any existing or past relationship with a party or foreseeable participant in the mediation; and(2) disclosure to the mediation parties any such fact known or learned as soon as is practical before accepting a mediation.(b) If a mediation learns any fact described in paragraph (a) (1) of this section after accepting a mediation, the mediator shall disclose it as soon as practicable.At the request of a mediation party, an individual who is requested to serve as mediator shall disclose his/her qualifications to mediate a dispute.This Act does no